Strengthened or threatened?

In January 2006, the Scottish Executive issued a consultation document deceptively entitled “Strengthening Judicial Independence in a Modern Scotland”. The document carries a ministerial foreword subscribed by Cathy Jamieson, Minister for Justice and Colin Boyd QC, Lord Advocate (now Lord Boyd sitting in the House of Lords as a cross-bencher). It is described as “A consultation on the unification, appointment, removal and management of Scotland’s Judiciary”.

Including the respondent information form, the document has 74 questions seeking answers. Many of the questions cast serious doubt on the authors’ ability to understand the doctrine of judicial independence. Despite the radical content of the document, only some 100 days were given for consultation. The timescale is quite inadequate. Further, it is clear from the document that many of the decisions for the management, suspension, discipline and dismissal of members of the judiciary have already been made. It is also clear that its authors are fishing for detailed ideas on implementation.

An established right

Despite the document’s title, it contains little direct reference to judicial independence. Paragraph 1 of Chapter 2 states that “Judges must be free from all influence when engaged in their judicial functions. We are fully committed to this principle and propose to strengthen our commitment with a statutory guarantee”. But what is the purpose of a statutory guarantee? The Scottish Executive is already bound by the doctrine of judicial independence. The constitutional convention has been in place since the Claim of Right 1689 – a child of the “Glorious Revolution”. Indeed the convention has its roots earlier in Scotland. In 1599 Lord President Seton made it known to James VI that judges were independent of the King, “sworn to do justice according to our conscience”.

The principle that the judiciary must be, and must be seen to be, independent of the executive is central to the rule of law in a modern democratic society. As Lord Hope of Craighead stated in an address to the Sheriffs Association in March 2002, “it forms the background to everything that we say and do as judges, both on and off the bench”. The principle must be practised. Writing it down is not going to strengthen it. Indeed it could restrict it. It raises the question of the scope of judicial functions, bearing in mind what Lord Hope had to say.

Judicial independence takes the form of non-interference, influence or pressure from the executive in respect of judicial decisions; security of tenure; immunity from suit; and impartiality. Ancillary to these are adequate funding to carry out judicial functions, appropriate salaries, judicial training and judicial self-discipline. Judicial independence is the bulwark of a democratic society. It is the safeguard for each and every citizen.

Failures in understanding

Making a statutory declaration of judicial independence does not make individuals appreciate it. There are ready examples of failures on the part of members of the Scottish Executive to grasp and understand the concept. Even the Lord Advocate faltered in his appreciation of the doctrine. In the autumn of 2005, giving the James Smart Lecture, he referred to the judiciary as being key partners in the criminal justice system. Judges and sheriffs are not in any form of partnership with the Scottish Executive, Crown Office or the police. It was entirely misleading to suggest otherwise.

The Justice Minister Cathy Jamieson has shown a similar lack of understanding. She has the habit of writing to members of the judiciary as “Dear colleague”. Judges and sheriffs are not colleagues of any member of the Scottish Executive. The latest and most serious example of a failure to understand the doctrine has, in fact, led to an erosion of independence. This concerned the establishment under the Mental Health (Care and Treatment) (Scotland) Act 2003 of mental health tribunals. As a consequence sheriffs lost their exclusive civil jurisdiction to deal with the detention of mental health patients. With it they have also lost their judicial independence since, now, tribunal decisions are by majority. The sheriff, as the legally qualified member of the tribunal, is charged with writing the reasons for the decision and can be placed in the obtuse position of writing down reasons for a decision with which he or she does not agree.

But there is more to it than that. The other two members of the tribunal can be a psychiatrist and a community psychiatric nurse, both employees of the National Health Service, one subordinate to the other. It is likely that it will not be long before a challenge is mounted that it is not a “fair and impartial tribunal”. But the concern does not end there. The tribunal members may not be immune from suit. As a consequence we already have the unedifying sight of the Scottish Executive Justice Department reassuring sheriffs that if there is a successful claim against them the Executive will indemnify. The bald fact is that sheriffs should not have been put in this position in the first place – illustrating that the authors of the legislation failed to comprehend the doctrine of judicial independence.

Interference already

That said, the consultation document itself has little to do directly with judicial independence. It is concerned with the restructuring and management of the judiciary which, without doubt, will have a deleterious effect on independence. The Justice Minister and the Lord Advocate sponsoring the document appear to take a lead from Lord Falconer and his proposals for reform in England and Wales announced in 2004. Lord Woolf, the Lord Chief Justice, generally supporting the proposed new arrangements, highlighted the fact that future judicial appointments would not be subject to political interference. This is not an idea that our Justice Minister and Lord Advocate have readily taken on board. In the latter part of 2005 an ad hoc committee was set up, selected by the First Minister, to interview candidates for Lord President and Lord Justice General, following notice from Lord Cullen that he proposed to retire. The committee consisted of Lord Hope of Craighead (Lord of Appeal in the House of Lords); Sir David Edward QC (temporary Court of Session judge and former judge of the European Court of Justice); Sir Neil McIntosh (chairman of the Judicial Appointments Board) and Mrs Barbara Duffner (lay member of the Judicial Appointments Board).

The profession might be entitled to assume that this committee would nominate an individual for appointment to the First Minister who would, in turn, nominate that person to the Prime Minister and to the Queen. But that is not what happened. Two leading candidates were nominated and were then interviewed by the First Minister, the Justice Minister and the Lord Advocate. Lord Hamilton was subsequently appointed Lord President, some two months before the consultation document was issued. Such meetings should not have taken place, despite the fact that, historically, the posts of Lord President and Lord Justice Clerk were political appointments; but the public and the judiciary could take some comfort from what was said by the new Lord President at his installation: “The independence of the judiciary from other organs of government is a prerequisite to the upholding of the rule of law…. Respect for the courts and what they do will be maintained only if the institutions which the judges head are strong and.... capable of resisting inappropriate pressures from whatever quarter”.

The remarks were perhaps a prelude to what was coming in the post, but the radical proposals require more than responses to questions before they appear in the form of a bill. The document however reveals that, despite its radical content on restructuring, it is proposed to bring forward legislation in the 2006-07 session of the Scottish Parliament. In addition, a Judicial Bill team is already in place. There appears to be undue haste.

Six heads of action

The proposals are divided into

six areas:

•     the creation of a unified judiciary headed by the Lord President;
•     a statutory Judicial Appointments Board;
•     removal of judges and sheriffs from office;
•     judicial discipline;
•     the use of retired judges and sheriffs; and
•     eligibility for appointment as a judge of the Court of Session.

Space and time do not permit exhaustive comment, but fundamental questions arise.

In the first place, the proposal to introduce a statutory provision concerning judicial independence raises the question of whether the Scottish Parliament has the competence to make any provision which might modify or restrict the United Kingdom constitutional convention of independence of the judiciary. If such a declaration is made for the legal system in England and Wales, it will be endorsed and passed by the United Kingdom Parliament at Westminster which is bicameral in nature. If this grandiose declaration succeeds in Scotland a constitutional convention in place for more than 400 years will be replaced and indeed modified by a simple majority vote in the unicameral Scottish Parliament. No doubt advices will be sought from the Advocate General for Scotland by those responsible for framing the bill, since it is clear from the document that this issue has not been considered.

Secondly, the document proposes “a unified judiciary” headed by the Lord President who would represent the judiciary in dealings with the executive. But what is a unified judiciary? Such a proposal loses sight of the fact that every judge and sheriff enjoys judicial independence, which is not some corporate asset shared amongst them. Perhaps this is the intention in the proposed legislation. If so, it is a frontal attack on the independence of the judiciary since the Lord President should not be given or assume responsibility “to represent the views of the judiciary”, as stated in the document.

Mutual independence

Every judge and sheriff is independent of every other judge and sheriff. There are in existence the Sheriffs Association and the Part-time Sheriffs Association. Not all sheriffs are members of either association. Further, any views expressed by either association are not necessarily the views of its members. The consultation document makes the cardinal error of stating that “the Sheriffs’ Association represents full-time sheriffs”.

Another example of the failure to appreciate the concept is revealed in relation to the deployment of sheriffs, when the question is asked, should explicit legislative provision be made authorising the transfer of a sheriff “on a compulsory basis in the interests of the administration of justice”. Such a proposition is an erosion of judicial independence, ignoring the fact that a resident sheriff accepts office within a particular jurisdiction on specified terms and conditions. A sheriff should not be put in the position of being compelled to move from one part of the country to another like some commercial traveller.

A right to complain?

The document proposes a comprehensive scheme to deal with complaints against judges and sheriffs, prefaced by the general unfounded observation that the absence of such a scheme “is not satisfactory”. One can imagine the Lord President being flooded with complaints from disgruntled litigants which he is required to investigate whether merited or not. There are even questions in the document about how you would define “inappropriate judicial conduct” and whether it should have a statutory definition. The Scottish Executive proposes an independent review of the handling of a complaint by the Lord President, perhaps by a lay observer. This represents another assault on the doctrine of judicial independence.

The proposed complaints procedure creates the impression that month in and month out there are complaints about judicial conduct and fitness for office. Since 1689 no Court of Session judge has been removed. In more recent times Sheriff Ewan Stewart was removed from office, but not before a procedure was adopted which was entirely fair and independent of the executive. The statutory encouragement of complaints and the complaints procedure conjures up a picture of litigants, lawyers, judges’ clerks, macers, sheriff clerks, court officers, procurators fiscal, judges and sheriffs turning up at disciplinary hearings. It will undermine the relationship between bar and bench and will erode the constitutional axiom of judicial independence. The proposals on discipline have the ethos of the factory floor. All that is required is that the judiciary is called upon to develop and produce a code of ethics and conduct, together with a set of rules as a means of ensuring accountability along the lines of the Latimer House Guidelines for the Commonwealth, first produced in 1998.

Further, the document reveals that a decision has been made to set up a tribunal of four to investigate fitness for office. The tribunal, selected by the Scottish Executive, will comprise two judges, an advocate or solicitor of 10 years’ standing and a lay individual. The first difficulty is that the constitution of the tribunal will be determined by the First Minister. Although it is proposed that the composition of the tribunal is agreed by the Lord President, it does not extinguish the fact that the decision is an executive decision. The second difficulty is that there is no review procedure, which is not unimportant since the document states that the chairman will have a casting vote. This raises an issue on compatibility with the European Convention on Human Rights.

A different Lord President

The far-reaching proposals imposing on the Lord President responsibilities for the management and disposal of business in the Court of Session, High Court, sheriff courts and district courts and for the training, deployment, welfare and discipline of the judiciary will have a dramatic impact on his present judicial role. The Lord President will be smothered in administration, abandoning his centuries-old judicial role. He will be in danger of becoming a glorified civil servant.

Further, and significantly in relation to the concept of judicial independence, is the question of funding. The document makes reference to the Lord President having a staff independent of the civil service. One suggestion made in the document is the creation of a separate “support structure… publicly funded”. It begs the question whether the Lord President would be publicly answerable for the expenditure, a notion abhorrent to the doctrine of judicial independence.

Overall, the consultation document concerns itself with brand new machinery for the management of the judiciary. It makes substantial and fundamental proposals which the Scottish Executive seems determined to proceed with at speed. If a Justice Bill is produced, only the Justice Committee stands between it and legislation. Everyone involved in the justice system favours the efficient and improved management of the courts, but this should not occur with the erosion of judicial independence.

Proper scrutiny

What these radical proposals require is reference to a working committee with input from judges, sheriffs principal, sheriffs and the Scottish Court Service to consider their implications. What is proposed is untried and untested and creates considerable danger for judicial independence. One is reminded of the observations of Chief Justice de la Bastide of Trinidad and Tobago at the opening of the 1999-2000 law term in his country when he said: “there is no more dangerous doctrine than it is enough for those who wield political power to say that they satisfy their obligation to respect the independence of the judiciary by refraining from telling the judges how to decide cases and not interfering with their decisions once made:… There is more than one way to skin a cat”.

Apart from the fact that many of the questions and proposals in the consultation document reveal a lack of understanding of the established doctrine of judicial independence, the proposals flag up dangers for independence and display a failure to appreciate the consequences for the longstanding constitutional convention. Unless the Scottish Executive abandons many of the commitments made in the document, the Justice Committee will have the important task and responsibility of ensuring the preservation of the axiom of judicial independence by taking on board the many criticisms that will undoubtedly be made when the proposals appear in legislative form. As matters presently stand the document should have been entitled “Interfering with Judicial Independence in a Modern Scotland”.