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Justice Committee 13 November 2012

13 Nov 2012 · S4 · Justice Committee

Item of business

Scottish Civil Justice Council and Criminal Legal Assistance Bill: Stage 2

MacAskill, Kenny SNP Edinburgh Eastern Watch on SPTV

I will discuss amendment 25 and its consequential amendments 26 and 29 first. I appreciate that Jenny Marra is seeking to ensure that the bill is clear about where responsibility for justice policy properly lies. However, I do not agree that the bill is unclear in that respect. I hope that I can provide some reassurances on what I agree is an important constitutional issue.The council will essentially be an advisory body. It must advise the Lord President on improvements to the civil justice system and it must assist the Lord President in the Court of Session in preparing rules of court.The council’s duties to advise the Lord President should be understood within the context of the Lord President’s statutory functions under the Judiciary and Courts (Scotland) Act 2008“for making and maintaining arrangements for securing the efficient disposal of business in the Scottish courts.”It is in that context that the council’s duties to advise the Lord President should be viewed. The council’s advisory functions are intended to assist the Lord President in fulfilling his duties under the 2008 act.The bill makes it clear that the council “may” advise ministers. I see no need to compel it to do so. Ministers and the Parliament can take the council’s advice into account if we so wish. The Lord President discussed those issues when he appeared before the committee and I understand that the committee was largely reassured by his evidence.Comparisons have been drawn with the Civil Justice Council in England and Wales. That body is a non-departmental public body under ministerial direction. I believe it appropriate that responsibility for the Scottish council, which will differ in several ways from the Civil Justice Council in England and Wales, will rest with the Lord President. The Government will remain the body responsible—and responsible to Parliament—for the development of wider justice policy. Nothing in the bill will affect the capacity of the executive, the legislature and the judiciary to continue to make the decisions that appropriately rest with them.I am unsure whether amendment 25 would achieve the clarity desired. I submit that the proposed dual function might even blur the lines, as it suggests that the council must consider matters that properly sit with ministers. With regard to the proposal to place a duty on the council to“consider how to make the civil justice system more fair, accessible and efficient”,the bill as drafted provides at section 2(3) that the council does not have to merely “consider” that issue but that for all its functions, which encompass the whole civil justice system, it must have regard to the principle that the civil justice system should be fair, accessible and efficient. I believe that that is a stronger protection that will permeate as a guiding principle for all the council’s functions.Amendment 28 would add the ability to make proposals for research to the council’s powers. Although I consider that there is little doubt that the council would be able to do that under the bill as drafted, I am happy for the bill to highlight that. Amendment 30 seeks to insert a reference to the sections under which the council may make recommendations. Section 3(2)(g) already provides that the council may publish “any recommendation it makes”. I believe that amendment 30 is therefore unnecessary.I invite the committee to reject Jenny Marra’s amendments, with the exception of amendment 28, which I am pleased to support.

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Justice Committee 13 November 2012

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