Executive revisits judicial independence

Second consultation on modified proposals with draft bill

News, 14 February 2007

The Scottish Executive today published a second consultation paper on judicial independence and the administration of Scotland's courts, with a draft Judiciary (Scotland) Bill.

Last year the paper "Strengthening Judicial Independence in a Modern Scotland" caused significant protest from judges and others, who feared that aspects of the proposals would in fact increase Executive influence over the judiciary. It was also suggested that placing the Lord President at the head of a unified judiciary would place too heavy a burden on the holder of the office.

Some modifications have been made to the proposals. Sheriffs are no longer to be subject to transfer at the direction of a minister, but by the Lord President. The Lord President would still become the head of a unified judiciary, with powers and responsibilities for training, welfare, deployment and conduct, and for the management of business in the courts, as well as for overseeing a complaints procedure - another matter that caused adverse comment.

However the paper states that it would be premature to do more than set out what appear to be the main areas requiring legislation, and the draft bill contains no provisions on this topic.

Other proposed measures include:

a statutory guarantee of continued independence for Scotland's judiciary, similar to provisions elsewhere in the UK;
placing the Judicial Appointments Board on a statutory footing;
a new process for appointing the Lord President and Lord Justice Clerk, requiring the establishment of a panel to recommend suitable candidates to Ministers;
modernising the arrangements for removing judges and sheriffs from office on grounds of unfitness;
provision for the functions of the most senior judges to be carried out during their incapacity, suspension from office or when the office is vacant.

Justice Minister Cathy Jamieson said that first and foremost the proposed legislation would strengthen the independence of the judiciary. On the role of the Lord President she commented:

"We and the judges are discussing how to bring together our plans for the unification of the judiciary with the Lord President's proposal, during last year's consultation, to take a role in the governance of the Court Service.

"We want to hear views from all interested parties on this before reaching firm conclusions.

"Only once we have reached decisions on the Lord President's governance role, can we take a firm view on the legislation required to address the many practical issues that would flow from it.

"We will take account of all subsequent responses while finalising the draft Bill which we plan to have ready for any new administration to introduce into the Scottish Parliament."

The Law Society of Scotland has welcomed the consultation, and supports a specific proposal for eligibility for appointment as a judge to be widened to include solicitor advocates with five years' experience of either criminal or civil rights of audience. At present only the two solicitor advocates who hold both types of qualification would be eligible.

Comments on the paper, which can be viewed at http://www.scotland.gov.uk/Publications/2007/02/13115213/0, are invited by 30 April 2007.