Delivering a modern justice system

Four years ago, following the birth of our Parliament, I set out the Executive’s vision for a modern justice system – a broad agenda encompassing a range of challenging areas. Our goals were clearly outlined: to update old laws, to make Scotland safer and create a fairer and more open system of justice. The modernisation of our legal system was integral to our broader programme of reform. While recognising the pivotal role the legal establishment should play in post-devolution Scotland, we also realised that in order to fulfil that role in the widest sense, there were important changes to be made. Fundamental changes that would create a demonstrably transparent and equitable structure and enhance the legitimacy of our legal process. Four years on, it is time to take stock, to evaluate the impact of the progress we have made since devolution.

Judicial Appointments

Let us examine those milestones, beginning with how we have changed the way judges and sheriffs are selected.  The establishment of the Judicial Appointments Board is a cornerstone of our broader plans to modernise the legal system in Scotland. We took on board the criticisms, ranging from the legal profession

to the media, about the perceived secretive nature and lack of transparency of the system. Indeed, I shared many of these misgivings. It was important to extend modern public sector appointment practices to the legal system, to enhance accountability and bring it up to date.

We consulted widely and the result was a Judicial Appointments Board with responsibility for nominating candidates for judicial appointment to the First Minister. The First Minister will adhere to the Board’s advice in his recommendations unless there is a compelling reason

to the contrary. An independent Board will secure a system that appoints the best candidates to the Bench, independent of the Executive and transparent in its work.  To date, the Board has recommended two judges and one sheriff principal post, each of which were accepted by Ministers.

Human rights and Freedom of Information

Scotland led the way in ensuring that all our legislation and the actions of all public authorities had to conform to the European Convention of Human Rights.  This was built into the Scotland Act 1998: but in addition, we have taken significant steps to modernise our system, notably in the Convention Rights (Compliance) Act which ensures that  our civil and criminal law and procedures are compatible with the Convention.  Along with our Freedom of Information Bill, which will legally enforce rights of access to information held by Scottish public authorities, this is a major step forward in creating more open and accountable government for the people of Scotland.  And we have published for consultation our proposals to create an independent, statutory Human Rights Commission for Scotland, that I believe can help to create a real and vibrant human rights culture in Scotland.

Land Reform Act

Further progress in tackling outdated aspects of the law is illustrated by the major programme of land reform we have undertaken. The Land Reform Act 2003 is an historic development in every sense. In summary, the Act is designed to extend community ownership of

land, to remove barriers to social economic and environmental development, and to establish new rights of responsible access. The Land Reform (Scotland) Act was the culmination of over 5 years work since the Land Reform Policy Group was set up and agreed on an integrated programme of action and legislation. Key elements of this programme are the establishment of new rights of responsible access, of community ownership and of crofting community ownership.

Part 1 will establish greater opportunities for people to enjoy the countryside in Scotland. This will also assist promoting social inclusion by improving people’s health and their quality of life. The Act creates a new statutory right of responsible access to land for recreation and passage, subject to certain exclusions and without prejudice to existing rights of access in relation to the land. It provides the general framework of responsible conduct, which applies to those exercising access rights, and to owners of land in respect of the use of the land subject to such rights. Part 2 will enable local communities to buy land when it comes to be sold, where the community can demonstrate an interest. The land can either be land with which the community has a substantial connection, or nearby land. The right to buy also includes the right to buy salmon fishings and mineral rights associated with the land. There  are 3 separate parts

to the provisions: the registration

of community interest; exercise of a community right to buy; and appeals and compensation provisions.

Part 3 will empower crofting communities. It will enable crofting community bodies to buy land at any time, not just when it comes to be sold. The Act enables them to buy all the land which the crofters use, including the mineral rights on and under the land, the salmon fishing exercisable from that land and, in certain tightly controlled circumstances, some additional land which adjoins the croft land.

I believe the Act makes an important contribution towards our policies

on economic development and community empowerment in Scotland’s rural areas, and strikes

the right balance between the aspirations of the public for access

to the countryside, and the concerns of those who live and work there.

Feudal Tenure

The Abolition of Feudal Tenure (Scotland) Act 2000 is no less historic. Section 1 of the Act encapsulates a defining moment, when it states: “The feudal system of land tenure, that is to say, the entire system whereby land is held by a vassal on perpetual tenure from a superior is, on the appointed day, abolished”. Land which was previously owned feudally will thus now be owned outright. By sweeping away outdated feudal rights and replacing them with a modern system of land ownership, we turned 800 years of feudalism on its head.

Feudal tenure refers to the technical and legal way in which most of us own our property. A person who owns land under the feudal system does so as the “vassal” of a feudal superior who retains a hierarchical  interest in the land in the form of a right to feuduty and a right to enforce conditions on its use by means of title conditions, particularly real burdens. These impose restrictions on the use of the property or perhaps obligations such as a duty to maintain the property in good order and repair.  This means that if a householder wishes to alter or extend their property, for instance to build a greenhouse or a garage, they usually need the superior’s consent. The superior could refuse to grant consent, unless in exchange of payment. So the garage may not be able to be built without a fee, possibly of several hundred pounds.

On the appointed day for abolition, superiority interests in land will disappear.  All remaining feuduties will be extinguished, though superiors will have the right to claim compensation.  The rights of feudal superiors to enforce feudal burdens will be abolished, though they will have the right to preserve burdens in certain limited circumstances where there is a genuine amenity interest to protect.  The rights of enforcement of third parties, for example other proprietors in the same housing estate whose properties are protected by the same burdens, will not be affected.  The crucial distinction is that superiors, who may live nowhere near the relevant property, will no longer be able to benefit from enforcing burdens which they have no real interest in enforcing other than financial profit.

Title Conditions Bill

Even after abolition of the feudal system, restrictions will remain on how an owner can use land.  Only around half of all the real burdens affecting land in Scotland were imposed in feudal deeds and the private regulation of land through non-feudal burdens will be unaffected by abolition of the feudal system.  While the 2000 Act abolishes an outdated system of land tenure, the Title Conditions Bill sets out a modernised framework of
rules for the imposition of conditions on property in the system of outright ownership of land. The Bill will reform, codify and where necessary enhance the law relating to the private regulation of land through burdens in title deeds. It will provide default rules for majority decision making among the owners of related properties which are subject to mutually enforceable burdens where title deeds make no such provision.  This will make it much easier to arrange common repairs for example.  Under these rules, owners will also be able to vary the burdens affecting their properties or to appoint a manager if they so wish.  Although this is a highly technical aspect of law, it is an area which affects all property owners in Scotland. Taken together, these developments constitute a radical, and much-needed reform over this whole area of Scots Law and it is intended that both pieces of legislation will be commenced in November 2004.  This is not the end of the proposed reforms of property law, however, since the Executive will shortly be publishing a consultation paper on reforming the law of the tenement.
Crime and criminal justice
I have mentioned a number of important civil law milestones, but while the civil law affects everyone at some time or other, it is issues of crime and criminal justice that most catch the public imagination.  By objective measures, crime overall is declining and so is the fear of crime, but we are concerned about the level of violent crime, and we are concerned about those who get drawn into crime at a young age, forming a pattern that is hard to escape.  The link between drugs and crime also remains a major concern.  Against this background I now want to turn to recent milestones in the area of criminal justice and their impact on the work of the legal establishment in Scotland.
Drug/Youth Courts
One of our principal aims is to stop offending escalating to the stage where custody is inevitable. We have therefore taken major steps to develop the range of community disposals available to the courts, for example restriction of liberty orders which are monitored electronically and drug treatment and testing orders.   
The aim of the drug courts is to reduce drug-related crime. To do this, the court works with the offender, during the sentence, to help reduce and then eliminate dependence on drugs. The courts are providing rapid access to treatment programmes and regular and random drugs testing. Offenders’ progress is reviewed regularly and penalties and sanctions can be imposed for non-compliance. If successful, the need to steal to feed the habit is removed. The courts accept that there will be relapses but provided progress is being made, the courts are likely to continue the drug court order. Already this innovative approach to sentence management is delivering results. The evaluation of the first six months of the Glasgow Drug Court showed that offenders were positive about their experience of the drug court, reporting significant reductions in drug use and offending.
The Youth Court is designed to target persistent young offenders in the 16-17 age groups, has three distinctive features: a fast-track process to deal with young offenders: designated sheriffs to share the work in the youth court and specially designed disposals for the young offender age group. Following a feasibility study, the Executive has introduced a pilot Youth Court in Hamilton. Building on our Youth Crime Strategy, this offers the prospect of making a real impact on community safety.  
Proceeds Of Crime
Criminality is getting ever more sophisticated and we also want to target the career criminal who can make a vast profit from his crimes.  The Proceeds of Crime Act 2002, a UK measure which we are currently implementing, will significantly strengthen the existing powers available not only to the police but also the courts for the confiscation of the assets of convicted drug dealers and of those convicted of other crimes. It also contains tough new investigation powers in addition to the present search and production orders. No longer should criminals and their associates be able to hold on to and enjoy – indeed flaunt – their ill-gotten gains. The Act covers both devolved and reserved areas and the Lord Advocate remains responsible for criminal recovery while Scottish Ministers will be responsible for civil recovery. The implementation of the measures in the Act will not only lead to the more effective recovery of the proceeds of crime, it will boost public confidence in the justice system.
Criminal Justice Bill
On 20 February 2003, our flagship Criminal Justice Bill completed its Parliamentary stages. This Bill will further improve community safety by introducing new arrangements for the lifelong assessment and minimisation of the risk posed by serious sexual and violent offenders.  It will strengthen the safeguards on the grant of bail, and improve community disposals so that they can be better tailored to the management of the risk posed by an offender, for example by combining electronic monitoring with other disposals designed to reduce the propensity to offend. It will also create tougher penalties for some
of  the offences that cause most concern to society because of the risk they imply to children – in particular possession of child pornography.  A new offence is being created to deal with those who traffic human beings for prostitution. New provisions now cover acts aggravated by religious prejudice. We have also legislated
to give victims a more central role
in the criminal justice system and
to enable their voice to be heard in court. In addition the Bill contains a raft of evidential, jurisdictional and court procedural matters aimed at providing a more efficient and effective system of justice.
I believe that our criminal justice legislation in the last 4 years has been some of the most wide-ranging and reforming ever seen, but there is more to do, and in the next Parliament we should want to concentrate on the efficiency of the High Court and on reforming summary justice
Legal Aid
I think that we can look back with some pride on a number of significant changes to legal aid that the Executive has made over the past couple of years. From the point of view of the profession, we are in the process of introducing major reforms to civil legal aid – the first for decades – which will not only improve remuneration for solicitors  but also deliver significant improvements for the client and increase the efficiency of the legal aid system as a whole.  We have also introduced new arrangements for dealing with urgent legal aid, transferring the risk of unpaid contributions from solicitors to the taxpayer; and extended the period over which contributions from the assisted person may be made.  We have significantly widened the scope of legal aid by increasing the financial eligibility limits, and by making legal aid available for Employment Tribunals, Social Security Commissioners, and VAT Tribunals.  We have begun to streamline the treatment of  benefits in the legal aid system. And all of this has been done in tandem with the changes to legal aid to support new arrangements brought in under the Adults with Incapacity Act, the Sexual Offences (Procedures and Evidence) Act and the Protection from Abuse Act. A pretty substantial list of achievements by anyone’s standards.
Conclusion
The key developments I have highlighted should be seen in the context of an evolving devolutionary settlement. They can be acknowledged as important building blocks in establishing a better, fairer and more democratic justice system for Scotland. Our record of achievement highlights significant progress in achieving our goals. It goes without saying that there is much still to be done, but we have come a long way in a short time. The Scottish people demand nothing less than a legal system that operates efficiently and effectively. A legal system that is shown to work in their interests. I am confident that through the continued collaboration with the legal establishment, we can consolidate and build on the progress of the last four years.