Committee
Justice Committee 10 June 2014
10 Jun 2014 · S4 · Justice Committee
Item of business
Courts Reform (Scotland) Bill: Stage 2
I begin by addressing the amendments in the name of Elaine Murray. The purpose of amendment 29 is to ensure that an appeal in the sheriff appeal court is heard by a bench consisting of three or more appeal sheriffs. In addition, at least one of those appeal sheriffs on the bench must be a sheriff principal, and at least one must be considered by the president of the sheriff appeal court to be a specialist in the type of case to be heard. That is surely overkill. I appreciate that important appeals should be heard by a bench consisting of three or more appeal sheriffs, but minor procedural matters hardly warrant such an army of judges. The Lord President gave an example of such a minor procedural matter when he gave evidence. He said: “A common situation is an appeal where a decree has been taken in absence, because through some blunder the defenders did not enter appearance on time.”—Official Report, Justice Committee, 22 April 2014; c 4534. A single appeal sheriff would be perfectly capable of dealing with such an appeal. Furthermore, as there are only six sheriffs principal, at most only six sheriff appeal courts wouldl be able to run at the same time. Elaine Murray’s amendments would therefore cause problems for running the sheriff appeal court. Currently, Scotland’s six sheriffs principal deal with some civil appeals from their own sheriffdom. However, the new sheriff appeal court will, in addition to those appeals, deal with all the civil appeals that currently go direct to the Court of Session. Further, the new court will require to deal with all summary criminal appeals, which currently go direct to the High Court, meaning that all appeals that come from the justice of the peace court and all summary criminal appeals that come from the sheriff court will require to be dealt with. It is important to note that the sheriff appeal court will have to prioritise summary criminal work. Restricting the court to a maximum of six sittings at any one time could lead to delays in the delivery of civil appeals. What if there is no specialist judge in the type of appeal? Amendment 29 would mean that the sheriff appeal court could not be constituted and the appeal would not be heard. Instead of tying the court’s hand in that way, it is vital that the court be empowered with the flexibility to adapt the size and constitution of its bench as appropriate, to deal with a variety of types of case that will come before it. Amendment 30 would have the effect that, if the bench of the sheriff appeal court consisted of an even number of appeal sheriffs and they were evenly divided in their verdict on any matter of fact or law, they could not appoint the appeal to be reheard at another sitting of the court with a larger bench comprising an odd number of appeal sheriffs. I presume that amendment 30 is to be read with amendment 29 but, as amendment 29 states that there must be “not fewer than 3 Appeal Sheriffs”, that allows for four or six appeal sheriffs and the possibility of an evenly split decision, the result being that there would be nowhere for such a case to go for disposal. Amendment 34 would repeal the section of the Criminal Procedure (Scotland) Act 1995 that governs the quorum in summary criminal appeals. At present, the 1995 act provides for three appeal sheriffs for appeals against conviction, and two for appeals against sentence only. Taken together with amendment 29, the effect would be that the quorum for summary criminal appeals would be three in all cases, of whom one would have to be a sheriff principal and one would have to be a specialist in criminal law. That would increase the judicial resource required to consider summary appeals against sentence beyond the status quo. In tandem with the limit on the number of sheriffs principal in the system, that could lead to case backlogs. Amendments 5, 9 to 12 and 15 to 18, in my name, are drafting amendments. The policy intention is that the court will sometimes be constituted by a panel of appeal sheriffs for important cases, but it may comprise a single appeal sheriff for appeals on minor procedural matters. Lord Gill stated in his evidence to the committee on 22 April: “in appellate work in the sheriff court the great bulk of the appeals are not appeals on the merits of the case at all, but procedural appeals against a refusal by a sheriff to allow a party to amend a case.”—Official Report, Justice Committee, 22 April 2014; c 4534. We envisage that the vast majority of such cases would be heard by a single appeal sheriff. However, the bill deliberately leaves such decisions on quorum and on who will preside at sittings of the court to rules of court. We have taken the view that any attempt in primary legislation to go further and to micromanage the size of the bench, or to manage who is to preside in every circumstance, would be impractical. We have therefore provided clear and unambiguous powers for the Court of Session to do so instead, through flexible rules of court as proposed by the Scottish Civil Justice Council. In addition, we have empowered the sheriff appeal court to react in real time to a live case and to convene a larger bench under section 56. Further, it will be for the president of the sheriff appeal court to decide which of the appeal sheriffs are on the bench in any specific appeal. It is an important principle of Lord Gill’s review and, therefore, throughout the bill, that courts have the flexibility to allocate the right judicial resources to the right courts. I therefore urge you not to accept Elaine Murray’s amendments in this group, which could have the effect of constraining the new court into an inflexible and administratively burdensome set of procedural obligations with regard to the size of bench and its constitution, stifling the court’s ability to adapt to the circumstances before it. Turning to the amendments in my name, I note that the wording in the bill as introduced requires to be clarified in order to be consistent with the fact that the sheriff appeal court may, if rules so provide, be constituted by a single appeal sheriff in some cases. This set of drafting amendments makes it clear that the court can be constituted by a single appeal sheriff. I move amendment 5.
In the same item of business
Kenny MacAskill
SNP
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Kenny MacAskill
SNP
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Elaine Murray
Lab
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Kenny MacAskill
SNP
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Kenny MacAskill
SNP
Like members who have spoken, the Government sees where John Pentland is coming from. We all have great sympathy there, and that is why we have taken action ...
Alison McInnes
LD
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The Convener
SNP
The result of the division is: For 4, Against 5, Abstentions 0. Amendment 41 disagreed to. Amendment 42 not moved. Schedule 1 agreed to. Sections 44 and ...
Kenny MacAskill
SNP
I begin by addressing the amendments in the name of Elaine Murray. The purpose of amendment 29 is to ensure that an appeal in the sheriff appeal court is hea...
Elaine Murray
Lab
The amendments in my name in this group are probing amendments. They seek to address the concerns that the committee voiced about the fact that appeals again...
Kenny MacAskill
SNP
In the debate on the previous group of amendments, members stressed the importance of having a sheriff appeal court constituted by three experienced judges. ...
Kenny MacAskill
SNP
This group of amendments is intended to assist with the successful establishment of the sheriff appeal court. Amendment 7 is required to introduce amendment ...
Alison McInnes
LD
I hear what the minister says and recognise the importance of ensuring that services throughout Scotland are of a piece, but it is important for the Parliame...
Roderick Campbell (North East Fife) (SNP)
SNP
I welcome the cabinet secretary’s amendments. They deal well with the situation in which there might be multiple financial claims but where one of those clai...
Sandra White (Glasgow Kelvin) (SNP)
SNP
I thank Roderick Campbell for his explanation of amendment 39. He started by saying that we might be confused by the amendment, but he has clarified for us e...
The Convener
SNP
John Finnie has made an important point about later sections in the bill; after all, we have to be able to bring all the provisions together. Christian Allar...
Roderick Campbell
SNP
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The Convener
SNP
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Margaret Mitchell
Con
Alison McInnes makes a compelling case. These cases are very complex and emotive, and it makes sense to remove them from the competence of the summary sherif...
Kenny MacAskill
SNP
My initial point is that the summary sheriffs will be highly qualified; they will have at least 10 years’ professional standing. As the convener said, assign...
The Convener
SNP
Amendment 5, in the name of the cabinet secretary, is grouped with amendments 29, 9, 10, 30, 11, 12, 15 to 18, 21 and 34. I understand this bit. If amendment...
Margaret Mitchell
Con
I have sympathy with amendment 29, in the name of Elaine Murray, which tries to improve the bill’s provisions by looking at the issue of a single sheriff hea...
Margaret Mitchell
Con
I regret that the cabinet secretary did not listen to my opening comments, because I made it quite clear that more sheriffs principal would be appointed and ...
The Convener
SNP
Amendment 6 is in a group on its own.
The Convener
SNP
The result of the division is: For 6, Against 3, Abstentions 0. Amendment 11 agreed to. Amendment 12 moved—Kenny MacAskill.
The Convener
SNP
The question is, that amendment 22 be agreed to. Are we all agreed? Members: No.
Elaine Murray (Dumfriesshire) (Lab)
Lab
I welcome the amendments and I am also pleased to support them.
The Convener
SNP
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The Convener
SNP
Have you spoken to amendment 24 yet?
John Finnie (Highlands and Islands) (Ind)
Ind
There is sometimes difficulty in looking at one section in splendid isolation. My intention is to support amendment 24, in the name of Sandra White—which is ...
Elaine Murray
Lab
They were provided to me by a Queen’s counsel.