New course for the courts

On 25 September the Judiciary and Courts (Scotland) Bill completed the final stage in the parliamentary process as MSPs agreed unanimously that the bill be passed. Although its passage attracted little interest from the mainstream media and went largely unnoticed by the general public, the bill is worthy of note, both in terms of the constitutional nature of its content and for the manner in which it has progressed through the Scottish Parliament.

In winding up the debate, the Cabinet Secretary for Justice, Kenny MacAskill, observed: “The bill is an important constitutional measure that provides a rare opportunity to refresh the relationship between the judicial, legislative and executive arms of government, which is fundamental to democracy.”

Although in Scotland it is perhaps more accurate to describe the relationship between the arms of government as a fusion than as a separation of powers, the bill, by transferring responsibility for the administration of the Scottish Court Service from the Scottish Ministers to the Lord President, attempts to delineate more clearly the relationship between the executive and judicial arms of the state. Indeed, for a state with no written constitution, the Judiciary and Courts (Scotland) Bill goes some way towards setting out in statute the constitutional relationship between the judiciary and the executive and legislature.

SCS governance arrangements

During parliamentary consideration of the bill, significant reservations were expressed about the new governance arrangements proposed for the Scottish Court Service, particularly in terms of the accountability of the Lord President to the Parliament. In particular, it was argued that the Scottish Ministers should retain a role in decisions about where courts are located on the grounds that such decisions are likely to be matters of some local political controversy.

Members of the Justice Committee felt that such potentially contentious decisions should be the subject of a decision by the Scottish Government and Parliament. Although Margaret Smith MSP was persuaded to withdraw her amendments on this issue during stage 2 committee scrutiny of the bill, Government amendments were subsequently lodged at plenary stage 3 consideration to provide that delegated legislation on sheriffdom boundaries and court locations should be promoted by Scottish Ministers to the Parliament and should be capable of annulment. In general, however, the Scottish Government provided sufficient reassurance to the Parliament to ensure that the new governance arrangements for the court service, with the Lord President as its head, were eventually accepted.

Judicial appointments

Prior to the establishment of the Judicial Appointments Board for Scotland on a non-statutory basis in 2002, judicial appointments were generally in the hands of the Government and only limited advertisement of vacancies had been introduced. The process of reviewing suitable candidates was traditionally undertaken by the Lord Advocate. When a vacancy arose, the Lord Advocate typically consulted the Dean of the Faculty of Advocates and the Lord President and might take further soundings from, for example, the relevant sheriff principal.

As such, it was widely considered that the judicial appointments process lacked openness and transparency. Concern was also expressed at the concentration of so much power and influence in the hands of the Lord Advocate, particularly as Lord Advocates often felt able to appoint themselves to the bench. Between 1842 and 1967, every Lord Advocate went on to the bench (see 2006 SLT (News) 144). Enshrining in statute a Judicial Appointments Board with strong lay representation (the number of lay members is to be equal to the total number of judicial and legal members) represents a radical departure from how judges were appointed in Scotland until relatively recently, and gives a greater role to lay views than is found in many other countries with established bodies for making judicial appointments (the Judicial Appointments Commission in England & Wales, for example, has a majority of legal members).

Many of those giving evidence to the Justice Committee, including the Lord President, argued that the Board should have a judicial majority. The Law Society of Scotland, on the other hand, expressed the view that: “the judiciary is not necessarily the touchstone of knowledge about persons who are suitable for the bench… practitioners see many more judges in action on a daily basis than judges do… we are content with the composition of the Board as it stands”. On balance, the Parliament and Government agreed that strong lay representation on the Judicial Appointments Board was a principle worth prescribing in statute.

Judicial conduct

The legislation also sets out in statute formal procedures in relation to judicial conduct and for removing judicial office holders when, for reasons of inability, neglect of duty or misbehaviour, it is considered necessary to do so.

The issue of judicial conduct is a constitutionally sensitive area. Historically, providing security of tenure has been regarded as crucial to ensuring that judges are not prevented from making unfavourable decisions against the Government. At common law it was generally considered that judges and sheriffs held office ad vitam aut culpam (for life or until fault). Indeed, occasions of judicial office holders being removed from office are few and far between. In 1977, a sheriff was removed from the bench for open involvement in political activity (promoting plebiscites on home rule) and in 1992 another sheriff was removed on grounds of inability. These appear to be the only recent instances of judicial office holders being removed from office. In both cases the decisions were contested, unsuccessfully, through judicial review.

The bill also confers on the Lord President responsibility for dealing with instances of judicial misconduct which fall short of the most serious cases where a question of continuing fitness for office arises, and enables the Lord President to make rules in relation to the investigation and determination of any matter concerning the conduct of judicial office holders. The bill provides a broad framework of powers, leaving the Lord President to determine the detailed rules.

It is estimated that around 180 complaints are made each year about the Scottish judiciary (although a significant proportion of these relate to sentencing and other judicial decisions). Discussion on this aspect of the bill was generally polarised between those, representing court users (Victim Support Scotland, the Law Society of Scotland), who favoured the introduction of a formal conduct scheme on the grounds that it would clarify the position for office holders and enhance public accountability, and those involved in presiding over the courts (such as Lord McCluskey) who favoured retaining the status quo. Most, however, conceded that there was some ignorance or uncertainty about how to go about making a complaint against the judiciary, and on the whole, opposition to establishing formal rules for investigating complaints against the judiciary was limited. The Justice Committee concluded that a formal complaints process was imperative.

The bill also establishes the office of Judicial Complaints Reviewer (in spite of opposition at stage 1 from Bill Aitken MSP, the Conservative convener of the Justice Committee). These provisions attracted more controversy on the grounds that the creation of such a body was unnecessary, overly bureaucratic and costly.

In order to be effective, the process for raising complaints against the judiciary will have to make clear to the public the distinction between complaints about the conduct of a judge or sheriff and decisions made by him/her. Whether the new procedures will provide an effective and proportionate mechanism for raising complaints against the judiciary will become clear in the months and years to come as the rules are developed and the Reviewer appointed.

Parliamentary process

Setting aside policy considerations, the manner in which the legislation was considered and debated by the Parliament is also worthy of comment. The Government made a number of concessions throughout the passage of the bill. The appointment, at the committee’s request, of an independent review led by Douglas Osler to examine the likely impact of the bill on judicial time is one such concession. Further, in response to concerns expressed by the committee that the statutory guarantee of judicial independence was too narrowly drawn, Government amendments were tabled at stage 2.

The Faculty of Advocates made the point that “if we expect the First Minister, the Lord Advocate and the Scottish Ministers to uphold the continued independence of the judiciary, we might equally expect the Scottish Parliament to do likewise”. The committee took this suggestion on board and unanimously agreed an amendment by committee member Nigel Don MSP to add members of the Scottish Parliament to those with a specific obligation to uphold the continued independence of the judiciary.

Of course, such concessions do not necessarily herald a new dawn of consensual politics in Scotland, but instead reflect the reality of legislating by minority government. The success of Bill Aitken’s amendment at stage 3 (which gives a member of the Judicial Appointments Board who is to be removed from office the opportunity to be heard by the Lord President or the Scottish Ministers), in the face of executive opposition, demonstrates that if the Government is unprepared to concede ground, the Parliament may exercise its ability to enforce legislative amendments. The margin of victory for the amendment (71 in favour, 46 against – only one SNP member was absent for the vote) demonstrates the difficulties that the SNP will face if it cannot depend on the support of any of the other political parties, a consideration that did not apply in previous sessions of the Parliament where the coalition block vote generally overcame any unwelcome non-executive amendments.

Although the issue at stake in this case was not of any great political significance, the success of Bill Aitken’s amendment, in spite of Government opposition, represents a warning to the SNP administration in advance of the more controversial justice-related legislation to come.

Judicial training: subject to constraints?

Judicial training is another area where the legislation developed along the way.

The bill as introduced gave the Lord President a general responsibility for making and maintaining appropriate arrangements for the training of judicial office holders. The Justice Committee took the view that these provisions did not go far enough, and suggested that confidence in the judiciary would be enhanced by making training mandatory, particularly in the potentially sensitive areas of family law and vulnerable witnesses.

In response the Scottish Government argued that the Lord President should be free from legislative constraints to devise an appropriate training regime. A compromise amendment, by committee member Margaret Smith MSP, the effect of which is that the Lord President must require any judicial office holder to attend such training as he determines necessary, was subsequently agreed to by all parties.