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Opinion: Tom Mullen/Alan Paterson

15 October 12

Provisions currently before the Parliament to establish a Scottish Civil Justice Council need amending if they are to conform to established principles of public law and administration

by Tom Mullen, Alan Paterson

The first part of the Scottish Civil Justice Council and Criminal Legal Assistance Bill is intended to implement that part of Lord Gill’s Scottish Civil Courts Review which called for the establishment of a Civil Justice Council. Its remit was “to keep under review the provision of civil justice by the courts in Scotland”, in a broad-ranging fashion. We welcome this, since it has the potential to make a major contribution to the reform and improvement of the civil justice system. However, we have reservations about the way its remit is expressed, its relationship with the Scottish ministers, its proposed composition and the methods of appointment.

Section 2 of the bill gives the Council the functions of keeping the civil justice system under review, reviewing practice and procedure in the courts, preparing and submitting draft procedure rules to the Court of Session, providing advice, and making recommendations to and responding to requests for advice from the Lord President on the civil justice system. It also has power to provide advice and guidance to ministers.

Whilst it is clearly desirable for an independent and expert body such as the proposed Council to have a major role in developing civil justice policy, the bill appears to us to weaken ministerial responsibility. Constitutionally, it is for ministers to make policy on the justice system as on other matters, and the perceived need to have an expert advisory body does not diminish that responsibility.

To make it clear that ministers retain ultimate control of policy development, we suggest two changes. The first would have the remit include a duty rather than a power to advise the Scottish Government on civil justice matters, emulating the equivalent provision for the English & Welsh Civil Justice Council (CJC), under which advice is provided both to the Lord Chancellor and the judiciary (Civil Procedure Act 1997, s 6). The second would provide for a duty rather than a power to give advice and recommendations on any civil justice matter at the request of ministers.

As respects the proposed composition of the Council, s 6 of the bill seems too heavily weighted towards judges and legal practitioners. It requires that the Council should contain at least nine judges and legal practitioners, but only two members from the consumer community and none from other user communities, although the option to add a further six members (“Lord President members”) might be used in this way.

It would in theory be possible, however unlikely, for all the members to be judges or lawyers. Clearly, they must have a substantial representation on any body of this type. However, the justice system exists primarily for the benefit of its users and the public generally. Appointing an advisory body dominated by a particular set of stakeholders risks undervaluing the interests of others, and the expertise and perspectives they can bring to the subject, which may well be different from those of practitioners and judges. Any concerns about the availability of expertise can be met by using the power in s 13 to appoint committees.

In England and Wales the CJC has now moved to a roughly equal balance between judges and practitioners on one hand, and other stakeholders, the latter category including business and non-business users, consumers, advisers, insurers, and academics.

This was done following a review which concluded that the CJC’s then membership did not reflect sufficiently the interests of users and consumers.

We believe that the Scots CJC should be similarly broadly based. The importance of user/public interest should also be reflected in a requirement that the deputy chair be one of the lay members.

The bill also makes no reference to standard public appointment principles being used for appointments to the CJC. In our view public appointments should be made in accordance with the standard principles unless there are convincing reasons for not doing so.

This entails a merit-based process which is open and transparent, with invitations or advertisements seeking applications against a person specification or competences, and interviews, followed by a recommendation by a panel constituted in line with the standard guidance from the Office of the Commissioner of Public Appointments.

Appointments to SLAB, the SLCC and (for most members) the Judicial Appointments Board for Scotland comply with the standard principles and procedure, as do appointments to the English & Welsh CJC.

No argument has been offered by the Scottish Government for departing from these principles, and the bill should be amended to require that the statement of principles published under s 7 be consistent with any code of practice published by the Commissioner for Public Appointments in Scotland under s 2 of the Public Appointments and Public Bodies etc (Scotland) Act 2003.

Tom Mullen, University of Glasgow; Alan Paterson, University of Strathclyde. The authors, along with four other senior public law professors in Scotland, made submissions to this effect to the Scottish Parliament Justice Committee.

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