Reformed courts will improve access to justice: Carloway
The new structure of the Scottish courts, whch comes into force today, "will go a long way towards rationalising the proper use of time and resources, thereby promoting improved access to justice for all", according to the Lord Justice Clerk.
Lord Carloway, acting head of the Scottish judiciary pending the appointment of a new Lord President, was addressing a Faculty of Advocates conference on Friday to mark the implementation of the Courts Reform (Scotland) Act 2014, which gives effect to the recommendations of the Scottish Civil Courts Review under Lord Gill.
The reforms, described by Lord Carloway as "long overdue", include the exclusion from the Court of Session of all cases with a value not more than £100,000, a new level of summary sheriffs, expected to operate from later next year, to deal with lower value civil and summary criminal business, increased specialism within the sheriff courts including the all-Scotland Personal Injury Court based in Edinburgh, a new Sheriff Appeal Court to take over the functions of the sheriffs principal in civil appeals and the High Court of Justiciary in summary criminal appeals, the introduction of time limits and permission hearings for bringing judicial review proceedings, and a requirement for permission to appeal to the UK Supreme Court.
Reallocating business in this way, Lord Carloway stated, would enable the Court of Session "to function as it should as the Supreme Civil Court in Scotland", dealing with increasing volumes of public, and public interest, litigation, "an important and developing area of jurisprudence". He added: "The devolution of certain appellate proceedings to the appropriate level of the Sheriff Appeal Court will create capacity within the Supreme Courts to deal promptly with the most important and difficult civil and criminal cases alike.
"Increased efficiency and cost-effectiveness of the court system is derived from the allocation and hearing of cases before courts commensurate with the characteristics of the subject matter."
The Lord Justice Clerk continued: "With the rationalisation of the court structure comes the integral rationalisation of the legal profession. The solicitor branch, including those with the privilege of extended rights of audience, will enjoy increased opportunities to demonstrate and develop advocacy skills in significant cases at sheriff and Sheriff Appeal Court level, in the swathe of business to be devolved from the Court of Session and High Court of Justiciary...
"A suitable regime may follow to govern the instruction of solicitor advocates, so that they can operate properly outwith the shadow of apparent conflicts of interest. The courts will ensure, so far as they can, that justice is seen to be done in all cases, irrespective of representation by solicitor advocate or counsel."
For advocates, "it will be important for the courts to look afresh at sanction, taking account of the significance of the new court structures and the altered legislative background, as well as the circumstances of individual cases. The interests of justice no doubt require that there should be a rational relationship, in the case of specialist pleaders, between the existence of rights of audience before the court, and the sanction of the exercise of those rights, at least in terms of the recoverability of expenses, in particular cases".
Looking to the future, Lord Carloway anticipated the implementation during 2016 of the enhanced case management in criminal appeals recommended in the Bowen report, and the potential for similar, simpler protocols then to be developed for summary appeals. New guidance will also seek to address "the difficulties experienced with the ubiquitous adjournment of first diets".
He concluded: "It is recognised that practitioners may be suffering from change fatigue. Nevertheless, practitioners are encouraged to engage positively with the spirit of the anticipated changes. It is much more satisfying to be part of a system which actually works rather than one regarded as dysfunctional.
"As the new changes bed in, further problems will be identified and addressed as they may arise in both civil and criminal systems. These systems are not the property of aliens, or kings or even a benevolent oligarchy. They belong to the people, including the legal profession. With the constructive cooperation of the profession, over the course of the coming legal year and beyond, there is the opportunity to establish an integrated courts and tribunals system of which we can all be justifiably proud."