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Court plans with little appeal

18 June 07

The fuller version of the Opinion article in the Journal for May 2007

by Jamie Gilmour

Following last year’s consultation document mistitled “Strengthening Judicial Independence in a Modern Scotland”, (the “consultation paper”) the Scottish Executive issued in March of this year a document entitled “Proposals for a Judiciary (Scotland) Bill” (“the proposals document"). Despite the radical proposals only about 100 days are again given for responses. The proposals document simply states “Please let us have any comments by 14 May 2007”.

The proposals document is in two parts. Part One consists of 12 chapters setting out the plans of the Scottish Executive in relation to, amongst other matters,

  • (a) independence of the judiciary;
  • (b) the role of the Lord President;
  • (c) the creation of a non-statutory Judges Council;
  • (d) establishing a statutory judicial appointments board;
  • (e) removal from office of judges and sheriffs;
  • (f) judicial conduct;
  • (g) re-employment of retired judges and sheriffs;
  • (h) the office of temporary judge;
  • (i) eligibility for appointment as a judge of the Court of Session and
  • (j) the Scottish Court Service.

Part Two is a draft bill dealing with the bulk of the Scottish Executive plans but, presently, excluding provisions for judicial involvement in the governance of the Scottish Court Service. The Scottish Executive proposes further discussion.

Some of the narrative in the first part of the paper has, disappointingly, an air of dismissiveness when referring to objections and concerns made in response to the consultation paper. A clear example of this is indicated by reference to responses made by the Faculty of Advocates and the Law Society of Scotland, two influential and significant bodies in the justice system, who called for a more thorough and independent assessment of proposals by way of an independent inquiry. The Executive response is that such an inquiry would take time. The proposals document states: “this view was not, however, universally held and, on balance, we have decided that an independent inquiry is not necessary”.

Again, in relation to the proposal to introduce a statutory guarantee of judicial independence, despite the fact that it has been a constitutional convention for some 400 years, the Scottish Executive states: “The balance of view overall favoured some provision being made”. This balance of view is difficult to find in the responses to the consultation paper, unless there is a plethora of confidential responses. Meekly, it is suggested that “it would not be right if Scotland were to be the only part of the United Kingdom in which the Executive was not fully bound by such a statutory guarantee”.

The statutory duty to respect judicial independence is contained in s 1 of the draft bill, imposing a duty on the First Minister, the Lord Advocate, the Scottish Ministers and “all with responsibility for matters relating to the judiciary” to uphold judicial independence. The First Minister, the Lord Advocate and the Scottish Ministers are levied with a special duty not to influence particular judicial decisions. The whole draft provision is unnecessary, begging the question what sanction might be imposed for non-compliance, for there is none proposed in the draft bill. Could it be that sheriffs and judges could impose up to 240 hours of community service on the First Minister if he breaches s 1?

The role of the Lord President is not yet part of the bill, but the intention is to make him or her “Head of the Judiciary in Scotland” with statutory responsibility for:

  • (a) representing the views of the judiciary to Parliament and to ministers;
  • (b) laying before the Scottish Parliament written representations on matters that appear to be matters of importance relating to the judiciary or to the administration of justice;
  • (c) maintaining arrangements to secure the efficient disposal of business in the courts of Scotland;
  • (d) maintaining appropriate arrangements for the deployment of the judiciary;
  • (e) maintaining appropriate arrangements for the welfare, training and guidance of the judiciary; and
  • (f) exercising disciplinary powers over members of the judiciary and maintaining a scheme for dealing with issues of conduct.

While some of these responsibilities are admirable, particularly in relation to maintaining appropriate arrangements for the general deployment of the judiciary, exercising disciplinary powers and maintaining arrangements for welfare and training of the judiciary, the Lord President is to become responsible for securing the efficient disposal of business in the courts of Scotland. The Lord President is worryingly described in the proposals document as “head of the courts”. On a detailed note, it is proposed to give the Lord President power to deploy a sheriff on a compulsory basis. This proposal ignores the principle that every judge and sheriff enjoys judicial independence, which is not some corporate asset.

The proposals document asks for views on this major and fundamental issue of the role of the Lord President, but indicates that it is likely that the Court Service should be overseen by a non-executive board chaired by the Lord President but including other judicial members. The board’s chief executive would report to the board, which would set policy and monitor performance of the Court Service.

To circumvent one issue of judicial independence, the proposals document suggests that it would be the chief executive who would be accountable to ministers in the Scottish Parliament in terms of the Public Finance and Accountability (Scotland) Act 2000 for Court Service performance. This is something of a fiction when it is the Lord President and the board that would be responsible for performance, delegating authority to the chief executive.

The proposals document goes on to suggest that these features “would move us away from the concept of the judiciary as customers of the Scottish Court Service”. It is quite erroneous to have regarded the judiciary as customers, aggravated now by the proposal to move the Lord President and other members of the judiciary to a partnership role, which is an anathema to the doctrine of judicial independence.

The judiciary should be completely divorced from the Scottish Court Service. It is the function of the Executive to run the Scottish Court Service. In short the general proposal on the role of the Lord President flies full in the face of the constitutional convention of judicial independence.

The draft bill includes provision for placing the Judicial Appointments Board on a statutory footing. There are detailed provisions for its constitution, membership and practical aspects, but the Scottish Executive has made no change to the composition of the membership. There will be an equal number of legal and lay members, although the Scottish Executive will retain power to alter the number in either category. The chairman will require to be a lay member of the Board.

The proposals document does not say much about variations in membership, particularly for more legal representation, but it might be prudent for the Scottish Executive and those ultimately responsible for passing the bill to take on board the interesting and detailed observations made by Sheriff D J Cusine in "Judicial Appointments Board for Scotland: a view from outside", 2007 SLT (News) 9. Amongst other things he highlights what other countries have done in relation to legal representation on judicial selection boards. If it was of concern to the Scottish Executive what other countries have done in relation to introducing a statutory guarantee of judicial independence, perhaps it should also be of interest what other countries have done in relation to selection boards.

One innovation in the draft bill is that the Judicial Appointments Board will be given power to appoint temporary judges. However, the Lord President still has the power to appoint a temporary judge from the ranks of serving or retired sheriffs principal and sheriffs. It is questionable therefore how useful this new provision will be where the Lord President wants to appoint temporary judges quickly, thus bypassing the Judicial Appointments Board. Interestingly, unlike the appointment of part time sheriffs, there is no limit to the number of temporary judges that can be appointed.

The proposals for removal from office give particular cause for concern in relation to the concept of judicial independence. In the proposals document the Scottish Executive reports that the Sheriffs’ Association were “strongly opposed to any change to the current arrangements set out in s 12 of the Sheriff Courts (Scotland) Act 1971”, since any change to a tribunal system would undermine security of tenure and consequently independence of the office of sheriff. With another air of dismissiveness, the document concludes that “this concern was not shared by all respondents”, so change there will be in the form of a tribunal.

In the case of fitness for judicial office of a judge, there will be a four person panel, three legal members and the omnipresent lay member selected by the First Minister with the agreement of the Lord President (unless he is the subject of the enquiry). However, significantly, in terms of the draft bill as presently framed, the First Minister, in s 15, can set up a tribunal to investigate and report without the consent of the Lord President. All he requires to do is consult the Lord President. The draft bill even has provision on how the tribunal will operate, requiring any person to attend proceedings for the purpose of giving evidence and producing documents. The whole procedure will make serious inroads into the doctrine of judicial independence.

One does not need to be a lateral thinker to deduce that if any judge appears before such a tribunal, his or her career is effectively over regardless of the conclusion reached by the tribunal. The judge will have been “hung out to dry”. The draft bill significantly omits to say who will remove the judge from office but, astonishingly, does not provide the judge with any form of appeal which is, ironically, a right which is available to every accused person that appears before a judge. The whole elaborate and unnecessary procedure is proposed despite the fact that since 1689 no Court of Session judge has been removed from office.

There are similar provisions in the draft bill for removal of sheriffs and part time sheriffs, only this time the Scottish Ministers have the power to establish a tribunal. The bill does state that removal from office will be by the Scottish Ministers. Again, there is no appeal procedure available to a sheriff or part time sheriff. The procedures for removal will undermine the relationship between bar and bench and illustrate a lack of understanding of the concept of judicial independence.

On a productive note, the proposals document will allow a sheriff principal to re-engage a retired sheriff principal or a sheriff as a temporary measure, restricted, however, to his or her sheriffdom. This provision circumvents the extraordinary situation presently in place of requiring a retired sheriff, having spent many years at the coal face, to appear before the Judicial Appointments Board for interview and recommendation for appointment as a part time sheriff. Another productive feature of the proposals document is provision in the draft bill for the functions of the Lord President and the Lord Justice Clerk to be dealt with during periods of vacancy, incapacity or suspension.

In conclusion, the proposals document largely ignores major criticisms made in response to the consultation document on the interference to the doctrine of judicial independence, particularly in relation to the draft bill provisions for removal from office of judges and sheriffs and the role of the Lord President as “head of the courts”. It is an invasion on the doctrine of judicial independence. The Scottish Executive and those advising them would do well to reconsider their position on the need for an independent inquiry in view of the radical proposals and their attack on judicial independence.