J/S3/09/13/A Justice Committee

J/S3/09/13/A

JUSTICE COMMITTEE

AGENDA

13th Meeting, 2009 (Session 3)

Tuesday 5 May 2009

The Committee will meet at 10.15 am in Committee Room 2.

1. Decision on taking business in private: The Committee will decide whether to take item 7 and any future consideration of written and oral evidence received on the Criminal Justice and Licensing (Scotland) Bill at Stage 1 in private.

2. Judicial Appointments Board for Scotland: The Committee will take evidence from—

Sir Muir Russell, Chairman, Elspeth MacArthur, Lay Member, Roy Martin QC, Legal Member, and Chris Orman, Secretary to the Board, Judicial Appointments Board for Scotland.

Not before 11:15 AM 3. Subordinate legislation: The Committee will take evidence on the draft Scotland Act 1998 (Modification of Schedule 4) Order 2009 (SI 2009/draft) from—

Kenny MacAskill MSP, Cabinet Secretary for Justice;

Brian Peddie, Head of EU and International Law Branch, and Fraser Gough, Solicitor, Scottish Government Legal Directorate, Scottish Government.

4. Subordinate legislation: Kenny MacAskill MSP (Cabinet Secretary for Justice) to move S3M-3961— That the Justice Committee recommends that the draft Scotland Act 1998 (Modification of Schedule 4) Order 2009 be approved.

5. Subordinate legislation: The Committee will take evidence on the Justice of the Peace Courts (Sheriffdom of South Strathclyde, Dumfries and Galloway) Order 2009 (SSI 2009/115) from—

Kenny MacAskill MSP, Cabinet Secretary for Justice; J/S3/09/13/A

Gerard Bonnar, Head of Summary Justice Reform Branch, Criminal Procedure Division, and Stephen Crilly, Principal Legal Officer, Scottish Government Legal Directorate, Scottish Government;

Eric McQueen, Director of Field Services, Scottish Court Service;

Nadya Stewart, Senior Procurator Fiscal Depute, Crown Office and Procurator Fiscal Service.

6. Subordinate legislation: Elaine Murray MSP to move S3M-3927— That the Justice Committee recommends that nothing further be done under the Justice of the Peace Courts (Sheriffdom of South Strathclyde, Dumfries and Galloway) Order 2009 (SSI 2009/115).

7. Criminal Justice and Licensing (Scotland) Bill: The Committee will consider whether to accept into evidence written submissions received in response to the call for evidence.

8. Coroners and Justice Bill (UK Parliament legislation) (in private): The Committee will consider a draft report.

Douglas Wands Clerk to the Justice Committee Room T3.60 The Scottish Parliament Edinburgh Tel: 0131 348 5195 Email: [email protected] J/S3/09/13/A

The papers for this meeting are as follows—

Agenda item 2

SPICe briefing on the Judicial Appointments Board for J/S3/09/13/1 Scotland

Paper from SPICe (private paper) J/S3/09/13/2 (P)

Judicial Appointments Board for Scotland research questionnaire (hard copy to Members only)

Agenda item 3

SI 2009/draft cover note J/S3/09/13/3

SPICe briefing on SI 2009/draft J/S3/09/13/4

The Scotland Act 1998 (Modification of Schedule 4) Order 2009 (SI 2009/draft)

Agenda item 5

SSI 2009/115 cover note J/S3/09/13/5

Letter from Elaine Murray MSP J/S3/09/13/6

The Justice of the Peace Courts (Sheriffdom of South Strathclyde, Dumfries and Galloway) Order 2009 (SSI 2009/115)

Agenda item 7

Written evidence (private paper in hard copy only) J/S3/09/13/7 (P)

Agenda item 8

Draft report (private paper) J/S3/09/13/8 (P)

Agenda item 2 J/S3/09/13/1

5 May 2009

Justice Committee

Judicial Appointments Board for Scotland

Background The Judicial Appointments Board for Scotland was established in June 2002 on a non-statutory basis. Its creation was intended by the then Scottish Executive to ensure that the way judges are appointed is, and is seen to be, entirely free from inappropriate influence. A commitment to place the Board on a statutory footing was given by the then Scottish Executive when the Board was first established administratively in 2002 and was a Partnership Agreement commitment of the that administration. In the meantime, the Scottish Ministers issued general guidance to the Board providing it with autonomy to develop its own practices and procedures.

The Judiciary and Courts (Scotland) Act 2008 (which received Royal Assent on 29 October 2008) places the Judicial Appointments Board for Scotland on a statutory footing. Section 12 of the Act provides that selection must be solely on merit. Section 13 provides that only the judicial and legal members of the Board may take part in any assessment by the Board of an individual’s knowledge of the law and skills and competence in the interpretation and application of the law. Section 14 provides that in carrying out its functions, the Board must have regard to the need to encourage diversity in the range of individuals available for selection to be recommended for appointment to a judicial office. Both the Lord President and Scottish Ministers may issue guidance to the Board as to the procedures to be followed by it in the carrying out of its functions (section 15). Guidance issued under section 15 may, in particular, relate to the manner in which the Board is to publicise vacancies and identify candidates for any appointment. In carrying out its functions, the Board must have regard to any guidance issued under this section. However, schedule 1 of the Act provides that the Board may determine its own procedure.

There are two prominent issues for discussion surrounding appointments to judicial office in Scotland. The first relates to the diversity of appointments and the second surrounds the quality of those appointed. Both of these issues raise the question of whether the right people are being appointed to the bench in Scotland. Before considering these issues, this paper will briefly describe the criteria for judicial appointment in Scotland.

Criteria for judicial appointment Eligibility for appointment as a Judge is set out in statute and provisions were first enshrined in the Courts Act 1672. Article xix of the Union with England Act 1707 conferred power on the United Kingdom Parliament to appoint the Lords Ordinary of Session, but restricted the appointments to Advocates of five years standing. The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 makes further provisions regarding the criteria under which Sheriffs Principal, Sheriffs and certain

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types of solicitors may be appointed as Judge. Sheriffs Principal and Sheriffs who have continuously exercised their respective functions for a period of at least five years are eligible for appointment, as are solicitors who have continuously had a right of audience in both the Court of Session and High Court of Justiciary for at least five years.

To qualify for appointment as sheriff a person must be and have been an advocate or solicitor for at least 10 years. Because of the nature of the office, those appointed should be practitioners of standing, whether Queen’s Counsel, advocates or solicitors with considerable court experience.

The Judiciary and Courts (Scotland) Act 2008 requires that the Board be satisfied that those it appoints to judicial office are of good character. The Board has also produced a list of skills, experience and qualities that successful candidates for judicial office must have, including, for example, the ability to marshal facts and competing arguments and the ability to communicate with all types of court user. (Judicial Appointments Board for Scotland, Criteria for Appointment).

Diversity As previously indicated, section 14 of the Judiciary and Courts (Scotland) Act 2008 provides that the Board must have regard to the need to encourage diversity in the range of individuals available to be recommended for appointment to a judicial office. During the passage of the Judiciary and Courts (Scotland) Bill, A number of witnesses expressed views, and in some cases misgivings, about this provision.

While the Board is able to determine the ‘diversity’ of applicants (as those who have applied for judicial appointments will have completed an equal opportunities questionnaire), it does not consider that it has reliable baseline data on the equality makeup of the eligible population for judicial appointments as a whole. The Board has, therefore, recently contacted all solicitors and advocates in Scotland in order to identify the makeup of the eligible population for judicial appointments and to determine how that might change in the coming years. It also hopes to identify whether there are any actual or perceived barriers inhibiting candidates from applying for judicial posts. In carrying out this research, the Judicial Appointments Board for Scotland is hoping to determine how diverse Scotland’s judiciary and legal profession is. The Board has appointed an independent research company MVA Consultancy to conduct the research on its behalf.

In 2006, the Law Society of Scotland commissioned a similar study into equality and diversity in the legal profession in Scotland (although the current study specifically seeks additional information about factors which encourage or discourage members of the legal profession from applying for judicial office and factors which affect the successful outcome of applications for judicial office). The 2006 study found that 89% of respondents classified themselves as being White Scottish, only 3% indicated that their sexual orientation was other than heterosexual, 60% indicated a Christian religion/faith (36% declared to be of no religion or faith) and 2% indicated that they had a disability.1 The gender split of respondents was almost even.

1 Data on diversity should be treated with caution as people are sometimes reluctant to disclose personal information about themselves (such as disability or sexual orientation).

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However, it was thought that this was because a larger proportion of female than male members responded.

The Judicial Appointments Commission (for England and Wales) is currently undertaking similar research (JAC launches barriers to entry research) and in October 2008 the Northern Ireland Judicial Appointments Commission (NIJAC) published the findings of its research project into the barriers and disincentives to judicial office (Propensity to Apply for judicial office under the new Northern Ireland Judicial Appointments System).

NIJAC commissioned Queen’s University Belfast and the Northern Ireland Statistical Research Agency to undertake the research to inform its future policy, particularly on diversity. The research examined attitudes within the legal profession (including within the judiciary) to judicial appointment and the barriers to such appointment. Amongst other things, the research found that many successful solicitors were simply not interested in applying for judicial posts (para 2.6) and expressed concern that the High Court in Northern Ireland has no female judges, reflecting poorly on the notion of a representative judiciary (para 2.9). The research concluded that misconceptions about what the job actually entails acted as a disincentive for candidates (particularly women) to apply and suggested that raising awareness about what judicial roles actually involve, through work shadowing programmes, professional newsletters, workshops/seminars/lectures, would make the job more attractive to women.

Judicial appointments in Scotland – gender balance Between 2002-2007, the Judicial Appointments Board for Scotland made 148 judicial appointments. The following table shows the gender balance in relation to these appointments.

Table 1: Gender breakdown of judicial appointments

Applied Interviewed Recommended Appointed Male Female Male Female Male Female Male Female 807 279 251 74 170 47 116 32 74% 26% 77% 23% 78% 22% 78% 22%

Source: Judicial Appointments Board for Scotland, Annual Report 2006-07

It is notable that although 45% of members of the Law Society of Scotland are female (Law Society of Scotland, Annual Report 2007), only 26% of applicants for judicial appointment in Scotland are female. Furthermore, only 24% of practising members of the Faculty of Advocates are female (membership figures provided by the Faculty). Figures 1 and 2 (below) provide further data on gender breakdown in relation to applications for and appointments to judicial office.

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Figure 1: Applications for judicial office (2002-2006)

Applications for judicial office

200 180 180

160 139 140 132

120

100 84 80 65 62 58 60 47 48 42 31 40 24 26 22 21 5 17 3 20 6 7 2 20 12 4 8 0 9 1 8 2 0 Lerwick/Kirkwall Senator (2004) Floating Sheriff Sheriff at Hamilton Perth in Sheriff Senator (2005) Sheriff Principal Floating Sheriff Sheriff Part-time Sheriff Part-time Senator (2006) Senator (2002) Sheriff Principal Floating Sheriff Sheriff Part-time and Dundee Sheriff of (2004) (2005) (2002) (2005) (2002) (2003) (2005) (2006) (2002) (2004)

Male Female

Source: Judicial Appointments Board for Scotland, Annual Report 2006-07

Figure 2: Appointments to judicial office (2002-2006)

Appointments to judicial office

40 37

25 24

15 13 11 10 8 8 8 7 2 4 4 4 2 5 3 1 2 0 1 0 1 10 2 0 0 1 0 301 0 Hamilton (2004) Sheriff in Perth Senator (2005) Sheriff Principal Floating Sheriff Part-time Sheriff Part-time Sheriff Senator (2006) Senator (2002) Sheriff Principal Floating Sheriff Part-time Sheriff Lerwick/Kirkwall Senator (2004) Floating Sheriff and Dundee Sheriff at Sheriff of (2005) (2002) (2004) (2005) (2002) (2005) (2006) (2002) (2003)

Male Female

Source: Judicial Appointments Board for Scotland, Annual Report 2006-07

In Scotland, 14% of current high court judges are female (Scottish Courts website) compared to only 10% of English High Court Judges2 (Judiciary of England and Wales website). There are no female sheriffs principal and of 142 permanent

2 As at 1 April 2008

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Sheriffs and 83 part-time sheriffs, 16% and 25% respectively are female (Scottish Courts website). Table 2 (below) provides some further data on gender breakdown within the legal profession.

Some commentators and practitioners are reassured that the low level of female and ethnic minority representation on the bench will be resolved over time as more women and ethnic minorities graduate from law school and work their way up through the profession (the ‘trickle-up’ theory). However, not all are encouraged by this view as, in teaching, academia, business and medicine, women have been present in the lower ranks for many years without approaching proportionality at the higher levels of those professions.3

Table 2: Gender breakdown within the legal profession

Male Female Law Society of Scotland 55% 45% Faculty of Advocates 76% 24% Part-time Sheriffs 75% 25% Sheriffs 84% 16% Sheriffs Principal 100% 0% High Court judges (Scotland) 86% 14% High Court judges (England and Wales) 90% 10% Judges (Ireland)4 78% 22% Law Lords (UK) 92% 8% Members of the Judicial Appointments Board for Scotland 80% 20% Total applicants for judicial office in Scotland 74% 26% Successful applicants for judicial office in Scotland 78% 22%

Gender is of course just one strand of diversity. Other strands include ethnicity, disability, age, sexual orientation, educational background and socio-economic status. Data on these other strands is limited, although the Judicial Appointments Board for Scotland reports that very few (if any) applications for judicial office are received from minority ethnic or disabled people.

The Judicial Appointments Board for Scotland has established a Diversity Working Group, chaired by a lay Board member and comprising representatives from the Faculty of Advocates and the Law Society of Scotland.

Quality of appointment Since it was established in 2002, the performance of the Board has received some criticism. For example, Professor Bonnington, writing in the Law Society Journal (2005), claimed that some lawyers "of less than average legal ability" have been appointed to the bench. In a Scots Law Times article, Sheriff Douglas J Cusine

3 Alan Paterson, ‘The Scottish Judicial Appointments Board’ in Appointing Judges in an age of Judicial Power (2006), page 27-28 4 In Ireland there has been a consistent year-on-year increase in female representation on the bench [Feenan, D., Judicial Appointments in Ireland in comparative perspective, 2008]. Despite this Feenan is critical of the low-representation of women in the judiciary, the methods of the Judicial Appointments Advisory Board and the marked lack of government (or judicial) debate about such low- representation.

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(Scots Law Times, Judicial Appointments Board for Scotland: a View from Outside, 2007), highlighted the failure of the Board to consult the relevant professional bodies, relying instead on the candidates’ nominated referees, as a particular short-coming of the existing recruitment procedures. Sheriff Cusine expressed concern that the Board’s recruitment methodology may provide an incomplete or even misleading picture of the candidate concerned. The Board has consistently defended its procedures and argued in response that Sheriff Cusine’s article was “misconceived in a number of key respects” (Scots Law Times Judicial Appointments Board for Scotland: a View from Inside, 2007) .

The Justice Committee, in its Stage 1 Report on the Judiciary and Courts (Scotland) Bill, expressed the view that “the Board must have as objective and thorough an assessment system as possible” and that such a system should be “robust, relevant and verifiable and in particular should allow references to be taken up”.

Judicial appointments in Scotland - selection process The general selection process employed by the Judicial Appointments Board for Scotland is set out in its 2006-07 Annual Report:

“We have adopted the two-sift process. Members of the Board individually assess all the application forms received before the preliminary sift meeting against the published criteria on our website. At the outset of this meeting they (lay members contributing first) declare their individual provisional markings and then discuss initial assessments. Importance is placed on the self-assessment section of the application form as well as the statement setting out the applicant’s reasons for applying for judicial office and the skills and abilities they would bring to the office. A ‘long list’ of candidates is drawn up and at this point we request referees’ assessments for those on the ‘long list’.

The second sift is carried out in the same way – with all members individually assessing the application forms and referees’ reports for the long-listed applicants. The Board then meet to discuss these markings and agree upon a short list of candidates who are to be invited for interview. Interview panels for Part-time Sheriff normally comprise four Board members (2 legal and 2 lay). For other offices, a six-person panel is the norm. At interview, candidates are asked to address the panel for up to ten minutes on a given subject and to answer questions arising from their presentation. Candidates are then subject to questioning by panel members and assessed against the published criteria (available on our website).

Following the interview the panel members will review the candidates, with the lay members speaking first, and have a discussion on the comparative merits of the candidates. At the conclusion of each day of interviews a further discussion takes place to arrive at a consensus view of the panel. Upon completion of the full interview process the full Board reaches its final conclusions as to the rankings of all candidates. The Board makes recommendations in our Report to the First Minister. The First Minister considers our recommendations and announces the appointments as and when candidates are drawn from the slate to fill vacancies.”

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The two-sift selection process remains the same for the larger appointment exercises i.e. All-Scotland Floating Sheriffs and Part-time Sheriffs. For the smaller exercises (Senator of the College of Justice, Sheriff Principal, Resident Sheriff), the Judicial Appointments Board uses a single-sift selection process. The preliminary sift is dropped and referee assessments are requested on receipt of application forms. The Board members then consider both the application and referee assessment forms before agreeing who to invite to attend an interview. The subsequent process then follows as for the two-sift process.

Methods of assessing merit As with any recruitment system, no matter how it is structured some candidates will emerge from the judicial appointments process disappointed with the outcome and the method of recruitment will inevitably favour some candidates over others. A number of different mechanisms have been employed by judicial appointments bodies as part of their recruitment processes, these include third party consultation and competency based assessment.

Third party consultation Third party consultation is a feature of the appointments process under the Northern Ireland Judicial Appointments Commission. Views and opinions about the qualities and work of candidates are sought from ‘consultees’ whose written comments are passed to the Selection Committee to assess. Candidates are requested to nominate (normally three) consultees. The consultees nominated must be able to comment on the candidate's ability to meet the competences and criteria for appointment. The use of consultees was identified by the 2006 research as one of the most difficult aspects of the appointments process. Difficulties associated with such consultation include the lack of confidentiality; concern that burdening busy people for references discourages candidates from making further applications after an unsuccessful attempt; and those with fewest links to litigation have the greatest difficulty in selecting suitable referees. Those who had acted as consultees also expressed some dissatisfaction with the process (NIJAC Research, page 8-9).

The NIJAC research found that barristers in private practice were least happy with the new arrangements for making judicial appointments. The old system of preferment matched their professional skills (i.e. it was based upon critical assessment by colleagues who saw them display their qualities in a professional context) whereas the new system requires interview skills, form-filling and a system of competence-based assessment (NIJAC Research, page 8).

In England and Wales, the Judicial Appointments Commission normally asks candidates on their application form to nominate up to three referees, or in some cases six. The Commission may also seek references from a list of Commission- nominated referees which is published for each selection exercise. A step-by-step guide to the Commission’s application processes is published on its website.

The issue of third party representation was aired during the passage of the Judiciary and Courts (Scotland) Bill. Lord Osborne, for example, voiced the concerns of some of the judiciary with regard to the manner in which the Board informs itself about candidates: “the Board is blinkered to sources of information that one would have thought were highly valuable” (Stage 1 Report, para 121). On the issue of gathering

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information on candidates, Richard Keen QC, dean of the Faculty of Advocates, said—

“the Board should consider consulting a little more widely than it does. I find it a little odd that I am regularly asked, in my capacity as Dean of Faculty, to complete reports to the Judicial Appointments Commission in England and Wales when members of faculty have applied for judicial appointments in England and Wales, but that I am not asked to do that when they have applied for an appointment in Scotland.” (para 122)

Sheriff Fletcher made the same observation: “It seems strange to me that the current Board would not be prepared to, or would not feel able to consult the Law Society of Scotland or the Faculty of Advocates about candidates, for example.”

In response to these concerns, Sir Neil Macintosh, then chair of the Board, observed—

“In its report to the Parliament three years ago, the Board made it clear that we believed that a substantial gap existed in the knowledge base about those who are in service, because we have no information about how people conduct themselves in part-time shrieval or floating sheriff appointments. We have advocated the fundamental argument that there should be a robust, objective and fair process in the interests of all concerned.”

Competency based assessment Using a strictly competency based approach, based only on information provided as part of the application process (i.e. application form and performance at interview), is another method that may be used to determine merit. The advantage of this approach is that there is a level playing field for candidates and all are assessed against the same set criteria. On the other hand, the person who performs best at interview is not necessarily the best placed to do the job and such an approach does not take into account the applicants previous job performance. As such, competence based assessment is regarded by some as an artificial process (NI Research 2006, page 17) and some question whether such an approach produces meritorious appointments. In practice, most systems of judicial appointment combine competency based assessment with some form of third party consultation.

Other methods In England and Wales, the Judicial Appointments Commission has used role-play and written tests in some selection exercises. In South Africa, the Judicial Service Commission has permitted interviews of candidates to be held in public.5 In the Canadian province of Ontario, the Judicial Appointments Advisory Committee encourages applications by under-represented groups through, for example, advertisements that state: “[i]n order to improve the representation of traditionally under-represented groups in the judiciary, applications are particularly encouraged from aboriginal peoples, francophones, person with disabilities, racial minorities and women”.6

5 Dermot Feenan, Judicial Appointments in Ireland in Comparative Perspective, 2008, page 65 6 Quoted by Dermot Feenan in Judicial Appointments in Ireland in Comparative Perspective, 2008, page 62

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Other issues A number of other issues may also be worthy of further consideration. These include–

• the role of the JABS in relation to the appointment of sheriffs to Glasgow and Edinburgh (it has been suggested7 that the Board is rarely involved in the appointment of sheriffs to these most coveted shrieval posts as they are typically filled by existing sheriffs who apply for a transfer);

• the role of the JABS in relation to the appointment of judges to the inner house.

Whilst the Judicial Appointments Board for Scotland has received some criticism both in terms of the quality and methodology of its appointments and the issue of diversity and the judiciary remains controversial, the Board is generally considered to be doing a reasonable job, has recognised good quality candidates who may not have been appointed under the previous arrangements and has enhanced the transparency of the judicial appointments process.8

Richard Hough SPICe Research April 2009

Note: Committee briefing papers are provided by SPICe for the use of Scottish Parliament committees and clerking staff. They provide focused information or respond to specific questions or areas of interest to committees and are not intended to offer comprehensive coverage of a subject area.

7 Alan Paterson, ‘The Scottish Judicial Appointments Board’ in Appointing Judges in an age of Judicial Power (2006) 8 Alan Paterson, ‘The Scottish Judicial Appointments Board’ in Appointing Judges in an age of Judicial Power (2006)

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JUSTICE COMMITTEE

13th Meeting, 2009 (Session 3), Tuesday 5 May 2009

SSI cover note

SSI title and The Scotland Act 1998 (Modification of Schedule 4) Order 2009 number: (SI 2009/draft)

Type of Instrument: Affirmative

Date circulated to members: 30 April 2009

Cabinet Secretary to attend Yes Justice Committee meeting:

SSI drawn to Parliament’s No attention by Sub Leg Committee:

Purpose of Instrument: This Order amends Schedule 4 to the Scotland Act 1998 to enable the Scottish Parliament to create a time limit for certain proceedings brought under the Scotland Act have to be brought before the end of a limitation period.

Affirmative instrument – procedure

1. The Justice Committee has been designated lead committee and is required to report to the Parliament by 26 May 2009.

2. The draft Order was laid on 1 April 2009. Under Rule 10.6.1(b), the Order is subject to affirmative resolution before it can be made. It is for the Justice Committee to recommend to the Parliament whether the Order should be approved. The Cabinet Secretary for Justice has, by motion S3M-3961 (set out in the agenda), proposed that the Committee recommends the approval of the Order. The Cabinet Secretary for Justice will attend in order to speak to and move the motion. The debate may last for up to 90 minutes.

3. At the end of the debate, the Committee must decide whether or not to agree to the motion, and then report to the Parliament accordingly. Such a report need only be a short statement of the Committee’s recommendation.

1 Agenda item 4 J/S3/09/13/4

5 May 2009

Justice Committee

Somerville judgement

Background This paper is produced in advance of the Justice Committee’s consideration of the draft Scotland Act 1998 (Modification of Schedule 4) Order 2009 (“the 2009 Order”) and, in particular, is intended to provide some background to the ‘Somerville judgement’.

The 2009 Order (which has also been laid before and requires the approval of the UK Parliament) would enable the Scottish Parliament to introduce subsequent primary legislation modifying the Scotland Act 1998 so as to provide that proceedings against the Scottish Ministers or a member of the Scottish Executive for breaching Convention rights (see further below) must be raised before the end of a prescribed limitation period of one year (although where the court or tribunal considers it equitable in the circumstances of a particular case, proceedings may be raised after that period). A further SPICe briefing paper will be provided when the primary legislation itself is introduced.1

Although it is only referred to in a footnote to the Executive Note of the above order, the Somerville judgement is central to the Scottish Government’s decision to legislate in this way.

The Somerville judgement Andrew Somerville was one of five convicted prisoners who had, at various times, been removed from association in prison (“segregated”) and who subsequently petitioned for judicial review seeking various declarators (i.e. statements by the court that the actions complained of were unlawful) in respect of the decisions to segregate them, as well as pecuniary damages on the grounds that segregation breached their human rights. The other petitioners were Samuel Ralston, Ricardo Blanco, William Cairns and David Henderson.

The cases of Somerville, Blanco, Henderson and Ralston v Scottish Ministers were raised on the basis that their prolonged segregation (more commonly known as solitary confinement or removal from association) and the method and processes of that segregation violated their Convention rights.2

1 The Scottish Government has indicated that the legislation will be introduced in June 2009 (S3W- 22488). 2 The Somerville case was not, as is commonly thought, to do with slopping out (although the legal issues raised are similar).

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The Prison Rules Rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 (“the Prison Rules”) states:

1) Where it appears to the Governor desirable for the purpose of-

(a) maintaining good order or discipline;

(b) protecting the interests of any prisoner; or

he may order in writing that a prisoner shall be removed from association with other prisoners, either generally or during any period the prisoner is engaged or taking part in a prescribed activity.

In other words, this rule enables prison governors to place prisoners in segregation.

Rule 80 further provides:

(5) A prisoner who has been removed from association generally by virtue of an order made by the Governor in terms of paragraph (1) shall not be subject to such removal for a period in excess of 72 hours from the time of the order without the written authority of the Secretary of State.

(6) An authority granted by the Secretary of State under paragraph (5) shall have effect for a period not exceeding one month but may, on the application of the Governor, be renewed from month to month by the Secretary of State.

These provisions require that prison governors must obtain the written authority of the Secretary of State (or, since devolution, the Scottish Ministers) where removal from association extends to a period in excess of 72 hours.

The Convention Artilcle 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms3 (“the Convention”), provides that:

1) Everyone has the right to respect for his private and family life, his home and his correspondence.

2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

It was an alleged breach of this Article that formed the basis of the Somerville case.

Section 7(5) of the Human Rights Act 1998 provides that any legal proceedings against a public authority for breach of a Convention right must be brought before the end of:

(a) the period of one year beginning with the date on which the act complained of took place;

3 agreed by the Council of Europe at Rome on 4 November 1950

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(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances.

The Scotland Act 1998 Section 57(2) provides:

A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law.

Section 100(3) provides:

“This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act [rules governing awards of damages] applied.”

Limitation period The Scotland Act 1998, unlike the Human Rights Act 1998, does not expressly stipulate a time limit within which proceedings against relevant authorities must be raised. The Somerville petitioners argued that their case was being brought under the Scotland Act 1998, contending, therefore, that no-time bar applied to their actions.

The crucial issues for the courts were: first, whether it was competent for the petitioners to seek a remedy in damages for breach of Convention rights under the Scotland Act as opposed to the Human Rights Act. Second, if it was competent for the petitioners to do so, whether the same 1 year time limit for applied to proceedings brought under the Scotland Act as applied to proceedings under the Human Rights Act. Ultimately, the majority in the House of Lords ruled that damages can be sought under the Scotland Act and that the time-limit in the Human Rights Act does not apply to such proceedings.

The purpose of the Act which the 2009 Order will facilitate is to create a time limit for certain proceedings alleging breach of Convention rights brought under the Scotland Act, making it consistent with the time limit for proceedings against public authorities brought under the Human Rights Act.

Other issues Some fundamental legal issues arose before the Somerville case even got to the stage of leading evidence on the substantive question of whether segregation was a breach of human rights. Indeed, the courts have not yet resolved this substantive issue. Principal amongst these issues was whether claims for damages against the Scottish Ministers for breaches of the European Convention on Human Rights could be brought under the Scotland Act and, if so, whether such claims were subject to the same time bar as applies to proceedings brought under the Human Rights Act. Some of the other issues raised by the Somerville case include:

I. access to documents (the court was not provided with full access to certain SPS documents on the grounds of Public Interest Immunity - disclosure would

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be contrary to the public interest and would cause real harm to the work of the SPS).

II. delegation of decision making powers (the segregation orders were not signed by the Scottish Ministers or Junior Ministers, as provided for by the Prison Rules, but were instead delegated, under the Carltona doctrine4, to various SPS officials, including in one case an ‘IT Programme Manager’).

III. proportionality (is segregation a reasonable5 and proportionate response to an offence?).

IV. adequacy of reasons (were the prisoners provided with an adequate explanation for their segregation, as required by the Prison Rules, and does failure to provide such an explanation render the segregation order itself unlawful?).

V. nature of the conduct being addressed by segregation (if the segregation complained of is a response to criminal conduct and the segregation order is, in that case, a criminal charge, Article 6 rights to representation and the opportunity to challenge any allegations would apply).

Legal Proceedings The legal proceedings which considered these issues are detailed and complex (the judgements themselves run to a combined total of over 200 pages). The following is a brief summary of proceedings to date.

Court of Session – Outer House (8 February 2005) Lady Smith ruled that the application of Prison Rule 80 did not breach Article 6 (right to a fair trial) or Article 7 (no punishment without law) but that Article 8 should be investigated further. Lady Smith ruled that the time bar did not apply. Lady Smith also found in favour of the respondents (i.e. the Scottish Government) on each of the other issues (i-v) referred to above.

Court of Session – Inner House (3 November 2006) The First Division of the Court of Session (Inner House) took the view that Parliament intended that any claims for damages for breach of Convention rights should be brought under the Human Rights Act (rather than the Scotland Act) and that the statutory time limit should for proceedings under the Act therefore applied.

House of Lords Appellate Committee (24 October 2007) The House of Lords took a contrary view that a person challenging an act or omission of Scottish Ministers on the grounds that it is incompatible with Convention rights could do so under either the Human Rights Act or the Scotland Act and that there was no basis upon which to read into the Scotland Act the same time limit in

4 Under the Carltona doctrine, the acts of a competent official are considered to be the acts of the Minister. 5 The classic legal formulation of unreasonableness (Wednesbury unreasonableness) occurs where a decision maker has come to a conclusion so unreasonable that no reasonable authority could ever have come to it.

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respect of such proceedings as would apply to the same proceedings had they been raised under the Human Rights Act.

The proposed primary legislation The proposed change in the law is not being brought forward just because of the Somerville case, indeed, the time bar will not apply to this case). The legislation will impose a time bar on any and all future ECHR claims under the Scotland Act (except for any proceedings brought by the Lord Advocate or her counterparts in other UK jurisdictions) and so limit the Scottish Government’s potential liability in relation to such claims. It will not apply to cases, such as Somerville, where proceedings have been raised before the changes take effect. Somerville, as the case that exposed the apparent anomaly in the law which previously had not been thought to exist, is the catalyst for this legislation.

Costs and future liability In April 2004 the Outer House of the Court of Session found that the conditions experienced by Robert Napier while on remand in 2001 in HMP Barlinnie had breached the European Convention of Human Rights (Mr Napier had spent long periods each day sharing a cell in which he had to "slop out"). The court awarded damages of £2,000 because it held that these conditions had exacerbated Mr Napier's eczema. The judgement, which was upheld on appeal, exposed SPS to the risk of claims for compensation from other prisoners. In November 2007, Scottish Ministers agreed to settle outstanding court cases where an individual had been detained in doubled up slopping out conditions for a material period of time.

According to a recent Ministerial Statement to Parliament, as of March 2009, 3,737 claims for compensation from prisoners had been settled at a total cost of over £11.2 million in compensation payments and associated legal fees. A further 1,223 cases are being dealt with and around 200 new claims are being raised each month.

The Scottish Prison Service has set aside £67 million to pay to prisoners who claim that doubled-up slopping out breached their human rights. By limiting liability for future claims to those raised within one year, the Scottish Government hopes to be able to divert £50 million of that £67 million to other uses.

Richard Hough SPICe Research April 2009

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JUSTICE COMMITTEE

13th Meeting, 2009 (Session 3), Tuesday 5 May 2009

SSI cover note

SSI title and The Justice of the Peace Courts (Sheriffdom of South Strathclyde, number: Dumfries and Galloway) Order 2009 (SSI 2009/115)

Type of Instrument: Negative

Date circulated to members: 30 April 2009

Justice Committee deadline to 11 May 2009 consider SSI:

Motion for annulment lodged: Yes

SSI drawn to Parliament’s No attention by Sub Leg Committee:

Purpose of Instrument: This Order makes various provision in relation to the establishment of justice of the peace courts (“JP courts”) in the Sheriffdom of South Strathclyde, Dumfries and Galloway. JP Courts are being established on a Sheriffdom by Sheriffdom basis and have already been established in Lothian and Borders; Grampian, Highland and Islands, Glasgow and Strathkelvin; and Tayside, Central and Fife.

Please see the Annexe for business profiles of district courts at Annan Cumnock and Girvan provided by the Scottish Government’s Criminal Procedure Division.

If members have any queries or points of clarification on the instrument which they wish to have raised with the Scottish Government in advance of the meeting, please could these be passed to the Clerk to the Committee as soon as possible, to allow sufficient time for a response to be received in advance of the Committee meeting.

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Annexe

Business profiles of district courts at Annan Cumnock and Girvan

Provided by the Scottish Government’s Criminal Procedure Division

Annan (26 sitting days per year, no custodies)

Date Trials Number of Police* Accused Travelled From trials which proceeded 5 Nov 08 Dumfries, Ecclefechan, Washington and London 5 0 4 5

19 Nov 08 3 0 4 Hamilton, Liverpool and 2x Glasgow 3 Dec 08 Kirkcaldy, Liverpool, Washington, 5 0 8 Rayleigh and 4x Glasgow 2 17 Dec 08 Ardrossan, Lochmaben, Lockerbie, 6 0 5 Daventry and Greenock 7 Jan 09 2 1 3 Morecambe, Kirkcaldy and Rayleigh 21 Jan 09 10 Helensburgh, New Galloway, 7 1 7 Blantyre Kirkcaldy and 3x Annan TOTAL 28 2 17 31 *reflects no. of citations rather than no. of persons cited. In relation to police witnesses in particular an officer may be cited to more than one case at any sitting, and would therefore be ‘counted’ once for each case.

As can be seen from the sample of 6 court sittings above, most offenders who have to attend Annan District Court typically travel from outside Dumfries & Galloway altogether. This is because the court mainly deals with Road Traffic Offences from the nearby M74. In at least 70% (in one court sitting, as much as 95%) of cases, the accused resided outwith Annan district.

Of all the trials fixed at Annan in 2008 a total of 74 witnesses were cited to attend Annan District Court. Only 18 of these were civilians which equates to about 20%. 15 of those witnesses were from Annan, with the remaining 3 from Lockerbie.

Of the total trials fixed, 70% of these had only 2 police officers cited to attend.

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Cumnock (52 sitting days per year, plus custodies)

Date Trials Number of Witnesses* Police* Civilian* Travelled from trials which proceeded 7 Nov 08 Cumnock and New 7 0 14 10 4 Cumnock 21 Nov 08 Catrine, Dalmellington 4 3 20 15 5 and Cumnock 5 Dec 08 Dalrymple, Ayr and 4 2 14 8 6 Dalmellington 19 Dec 08 Kirkmichael, Cumnock, 4 2 14 6 8 Rankinston and Auchinleck 9 Jan 09 Dalrymple, Ayr and 4 4 25 13 12 Patna 23 Jan 09 Catrine, Auchinleck 5 2 19 12 7 and Drongan TOTAL 28 13 106 64 42 *reflects no. of citations rather than no. of persons cited. In relation to police witnesses in particular, an officer may be cited to more than one case at any sitting, and would therefore be ‘counted’ once for each case.

Girvan (24 sitting days per year, plus custodies)

Date Trials Number of Witnesses Police Civilian Travelled from trials which proceeded 11 Nov 08 0 0 0 0 0 n/a 9 Dec 08 0 0 0 0 0 n/a 13 Jan 09 1 1 5 1 4 All Maybole 10 Feb 09 0 0 0 0 0 n/a Total 1 1 5 1 4

Travelling Distances to Dumfries/Annan

Scottish Court Service (SCS) used a range of factors to inform proposals for their recommendations for unification in the Sheriffdom of South Strathclyde Dumfries and Galloway, including business levels, value for money, standard of existing facilities, the mix of more serious business to be dealt with, local access to justice and the proximity of other courts.

Langholm

A small number of individuals may have to travel further when Annan DC closes. The distance between Annan and Dumfries is around 16 miles by road. Taking Langholm as an example, the distance between Langholm to Annan is around 23 miles by road, and between Langholm and Dumfries is around 38 miles. The distances involved in travelling to the JP court (in Dumfries) from any part of the district are comparable to those other rural areas of Scotland.

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Given the very low level of business arising from Langholm, any inconvenience for Langholm residents (population just over 2690) caused by the closure of Annan district court would be limited. Langholm residents already make a 46 mile round trip to Annan, and a 76 mile round trip to Dumfries Sheriff Court.

SCS is aware that if a court user requires to use public travel between Langholm and Dumfries is difficult, and requires a change of bus which adds to journey time. In essence, he or she would have to take a bus from Langholm at 7.19, arriving in Dumfries at 8.43 to be on time for a 10am start. However, a degree of latitude could be exercised by the courts so that later services could be used (e.g. start out from Langholm 9.05, arrive Dumfries 10.58).

Numbers affected are however likely to be minimal. Of the 32 cases reported from Langholm police station in 2008, none resulted in witnesses from Langholm being cited to attend Annan District Court. Only 4 cases had witnesses cited and they were all cited for Dumfries Sheriff court.

However, public travel between Langholm and Annan would be difficult in any event, with a change of bus required for that journey (of 50 minutes) too. This highlights a fairly common lack of public transport to outlying areas in the region.

Other towns and villages

There would in fact be an advantage of a move to Dumfries for residents of Lockerbie, which has a significantly higher population that Langholm (4090 as opposed to just over 2690). There is more regular public transport as between Lockerbie and Dumfries than Lockerbie and Annan, where Lockerbie business is currently heard. The same applies to the outlying area of Moffat (with a population of 2340 close to that of Langholm), where transport to Dumfries via Lockerbie is more advantageous as opposed to journeys made to Annan.

SCS recognise that there are travel difficulties in rural areas, and similar points have been raised in the earlier unification phases. At each stage of unification, due consideration has been given to the potential inconvenience following a change in court location, within the context of the decision-making framework employed throughout the unification process.

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JUSTICE COMMITTEE

13th Meeting, 2009 (Session 3), Tuesday 28 April 2009

Justice of the Peace Courts (Sheriffdom of South Strathclyde, Dumfries and Galloway) Order 2009 (SSI 2009/115)

Letter from Elaine Murray MSP to Members of the Justice Committee

I write to request that you do not pass the above statutory instrument, which proposes the closure of Annan District Court and has arisen from a consultation based on a number of incorrect assumptions.

1. Unsuitability of premises

Paragraph 3.3.2 of the Consultation Paper contains a number of inaccuracies,

(a). It is indicated that the Court sits within the Council Chambers in the Town Hall. The Court does not sit in the Council Chambers, but rather in the Courtroom on the ground floor.

(b). It is indicated that this room is also used for other purposes. It is understood the Council have no objection to this room being dedicated for use as a Courtroom if required.

(c). It is indicated that “customers” (presumably either the accused or witnesses) are dealt with at the Council’s Customer Service Centre on the ground floor. That is not the case. There is a separate outside entry to the corridor leading to the Courtroom and the three adjacent rooms which are presently used by Police Officers, the accused and witnesses. There is a separate desk at which a member of the Court administration sits checking details of the persons entering that corridor. There is a secure door at the end of that corridor which prevents any of the accused or the witnesses having access to the other parts of the Council building. At no time, except in error, do “customers” use the Council’s normal Customer Service area.

(d). It is indicated that there are no cells or detention facilities. Firstly, it should be pointed out that the Courtroom is literally 20 yards away from the new Annan Police Station which has full detention facilities. Secondly, it is understood that there is a large basement underneath the existing Courtroom, which it may be possible to outfit as a detention centre.

(e). It is stated that the administrative staff are situated on the first floor. As stated above, at least one member of the administrative staff is on duty outside the Courtroom at every Court sitting.

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(f). It is stated that the accommodation is viewed as being unsuitable for Summary Court business, and to continue to provide a Court service in Annan you would have to identify an alternative building or fund the construction of a new build. It goes on to state that your are unable to identify a suitable building, but it is not known what efforts were made in that respect. It is also understood that the Council may be prepared to allow a greater part of the existing building to be taken over as a dedicated Court and associated rooms for witnesses, accused and Police personnel. In the press release contained in the Annandale Observer of 27th March you indicate that the lack of cells and standard of Courtroom were only two of the factors considered, but these other factors are not known and should be made public.

2. Future dealings of Court business

(a). The Consultation Paper envisages the Court business conducted in Annan being absorbed by the Magistrates Court in Dumfries. It is noted that no additional Diets are proposed for the Dumfries Court. It is understood that Dumfries District Court cannot sustain its present level of business without special Courts being arranged to deal with Trials, exceptional hardship pleas etc due to shortage of Court time. We understand that that Court has on occasions finished in the early hours of the evening. The average Court Roll in Annan District Court (per sitting) is in the region of 90 cases. Annan District Court also regularly has to adjourn Trials because of shortage of Court time and also regularly concludes after 4p.m. It is submitted that it is simply not possible for an additional 180 cases per month to be absorbed by Dumfries District Court without a substantial increase in the number of regular Court sittings.

(b). It is noted therefore that the Courts cannot cope with their present workload with the number of Diets presently assigned to them. In view of the fact that more cases are being transmitted to the District Court rather than being dealt with in the Sheriff Court, this will be an increasing problem. In particular, as these additional cases, which would otherwise have been dealt with by the Sheriff Court, would be regarded as being more serious. They are therefore much more likely to have a local connection than the present workload.

(c). The Consultation Paper deals briefly with the provision of public transport from Annan to Dumfries. This ignores the fact that the jurisdiction of Annan District Court extends eastwards from Annan to Langholm, Canonbie, Gretna, etc. Gretna is eight miles from Annan, Canonbie is twelve miles from Annan and Langholm is eighteen miles from Annan. The distance that the public would require to travel from Langholm to Dumfries is in the region of forty miles to have access to Court facilities. There is no train service from Langholm to Dumfries. There is no direct regular bus service

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from Langholm to Dumfries. Accordingly, if Annan District Court is de-established, witnesses and accused from Langholm will require to travel forty miles for District Court cases. Furthermore, it is also noted from the Consultation Paper that the administration of the Court, which is presently situated within Annan Council Chambers, will also be transferred to Dumfries Sheriff Court. Particularly with regard to payment of fines, this means that people from Langholm will require to travel forty miles to pay their fine at Dumfries Sheriff Court. People situated to the east of Annan, will therefore find themselves in the ridiculous position that it would be more convenient for them to have fines etc transferred to Carlisle Magistrates Court in England, which they could at least reach by way of public transport services.

(d). It is understood that Dumfries & Galloway Council have indicated that, if SCS’s health and safety requirements could be made known to them, they would be prepared to make a substantial contribution (of at least £20,000) towards the necessary upgrading of the Court facilities.

Yours sincerely

Elaine Murray MSP