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Paving the road to reform

18 November 13

The recently established Scottish Civil Justice Council's priorities for the current year and beyond

by Lord Gill

When the Scottish Civil Courts Review reported in September 2009, it was obvious that fundamental change would be required if the courts were to deliver the quality of justice to which the public is entitled. Since then, a remarkable process of legislative reform in Scotland has been gathering pace. It will have a profound and positive impact on the civil justice system in Scotland, and benefit the people who use it. The establishment of the Scottish Civil Justice Council, under the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013, in May of this year marked the first stage of the implementation of the Review's recommendations. I am pleased to record the remarkable progress of the Council in its first six months, and to describe how it plans to approach the revisions that will follow. 

Wider role

The Scottish Civil Justice Council replaces the Court of Session and the Sheriff Court Rules Councils. The Review concluded that a single body, able to take a holistic overview of the Scottish civil justice system, was necessary in order to ensure a systematic approach to civil justice reform. The Scottish Civil Justice Council has responsibility for that overview. Following the Council's initial work to support civil courts reform, it will ensure that the system is kept under constant review and that it remains responsive to the changing needs of modern society. The Rules Councils have done valuable work over the years, recommending many reforms to the practice and procedure of the Court of Session and the sheriff court. I am grateful to all the individuals who contributed their experience and knowledge to that work.

The new Council takes over the Rules Councils' rule drafting functions. It has a new, and wider, role to advise and make recommendations on the development of the civil justice system. It has been given broad powers to carry out its functions. These powers include the ability to make recommendations to the Scottish ministers, to conduct consultations and to commission research. The Council will also be able to take into account proposals for reform when preparing draft rules.

Implementation of the proposals contained in the forthcoming Courts Reform (Scotland) Bill will require many changes to the procedures of the civil courts. The Council's primary task will be the preparation of the rules. The decision to establish the Scottish Civil Justice Council in advance of the Courts Reform (Scotland) Bill, which will be introduced to Parliament next year, has proved effective. The Council is making full use of the time that has been afforded it to prepare itself for the substantial work that will be necessary.

The Council's membership covers a good range of interests and experience across the civil justice system. As well as the judiciary and practitioners, it includes consumer representatives, an academic and an employment judge. The chief executives of the Scottish Court Service and the Scottish Legal Aid Board, and a member of staff of the Scottish Government, hold standing appointments. The breadth and depth of experience available to the Council is impressive. I am grateful to the members for contributing their time and knowledge without thought of reward. 

Justice system reform

The Council is required to lay an annual programme and annual report before the Scottish Parliament. I was pleased to be able to announce the publication of the first annual programme earlier this month. The programme sets out the Council's priorities for the current year and describes how the Council will approach its work.

One of the key areas of focus for the Council will be the implementation of major justice system reform projects. In addition to civil courts reform, there are two further initiatives that will have a direct impact on the work of the Council. The first is the Scottish Government's plan for reform of the Scottish tribunal system. The second, as highlighted in the Journal last month (October 2013, 13), is Sheriff Principal Taylor's Review of Expenses and Funding of Civil Litigation in Scotland.

The Scottish Government's Tribunals (Scotland) Bill includes provisions which will bring consideration of the tribunal system and tribunal rules within the Council's remit. The Scottish Government has indicated that it does not intend to commence the relevant provisions before 2017. A considerable amount of preparation will be required for the Council to take on these additional functions. 

The Council will also be directly involved in consideration and implementation of Sheriff Principal Taylor's review. It has agreed that a Costs and Funding Committee should be established in early course.

In addition to the reforms of the court structure proposed in the draft Courts Reform (Scotland) Bill, the Scottish Civil Courts Review also considered that there was a potential need for a comprehensive revision of the rules of the civil courts, coupled with the adoption of enhanced judicial case management systems. 

Of particular interest to practitioners will be the work of the Council's Rules Rewrite Working Group. This group has been established to develop the methodology for the rules revisions. It will have the key task of including preparation of an annual rules rewrite programme to enable various phases of rule changes to be prioritised. The work of the Group will be critical to ensuring the smooth delivery of civil courts reform by the Council.

Much of the work on these major reform projects is being done under the auspices of the Scottish Government's "Making Justice Work" programme, which Eric McQueen, chief executive of the Scottish Court Service, spoke about when he was interviewed by the Journal (October 2013, 10). The programme has been notably successful in bringing together the whole range of organisations within the justice system to produce effective and coherent reform. 

Ongoing work

While the major legislative reforms may be the subject of headlines, the Council's day-to-day work will be of direct relevance to practitioners and the public. The Council's annual programme sets out in detail what we will do. 

The Council has set up a number of subject committees for more detailed work. These committees cover personal injury, family law, access to justice, the use of ICT, and costs and funding. Each of these committees has the benefit of members with specialist expertise.

The Council intends to consult widely with the whole range of individuals and groups with an interest in the civil justice system. To that end, Council representatives met the Law Society of Scotland's President and the convener of its Civil Justice Committee earlier this summer to discuss how best the solicitor branch of the profession can contribute to its work.

We have made good progress to date. Our committees are devising improvements to procedures falling within their remits; a public consultation on draft rules in relation to reporting restrictions has been conducted, the responses to which are currently being analysed; and a website for the Council, which will act as a hub for communicating all Council activity, has been created. There has been a successful handover of work from the previous Rules Councils, with several sets of rules having been made following the new Council's consideration of them. These achievements are a credit to all those who have contributed to the work of the Council. The historic programme of reform on which we are about to embark will require co-operative effort. The foundations are now firmly in place.

The Rt Hon Lord Gill is Lord President of the Court of Session and Lord Justice General.
The Scottish Civil Justice Council's Annual Programme 2013-14, and further information on the Council, is available at www.scottishciviljusticecouncil.gov.uk

 

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