Meeting of the Parliament 21 May 2014
The bill represents years of endeavour by the Scottish civil courts review, which Lord President Gill led, and will implement overdue reforms to Scotland’s civil courts. Crucially, it is intended to improve access to justice and the court system’s efficiency and effectiveness. As such, the Scottish Conservatives will support the bill’s general principles, but the criterion of improving access to justice is the key measure by which the bill’s provisions must be assessed.
To start with the positives, the creation of the new judicial appointment of summary sheriff is good news, as are the proposals to increase sheriff specialisation and to create the new simple procedure.
In relation to judicial review, the three-month time limit and the introduction of a permission stage with the section 85 test of a real prospect of success were the subject of conflicting evidence. Those provisions could reduce access to justice, so the Government and the committee need to revisit the issue, to ensure that the bill adequately balances the importance of judicial review as a remedy for individuals and community groups with the need to ensure that it is not misused.
The bill’s sheriff appeal court provisions radically depart from the Gill review’s recommendation by proposing that the majority of cases before that court should be heard by a single sheriff, instead of a sheriff principal or, when appropriate, a bench of three sheriffs principal. As a consequence, appeals would merely substitute one sheriff’s opinion for that of another. Worse still, the appeal sheriff—who might or might not be a senior sheriff—would in effect be writing the law for the whole of Scotland.
The financial memorandum clearly states that, if a significant number of appeal cases required a bench of three, that would have an impact on the costs associated with appeals. It would be a grave mistake for the Scottish Government to depart from the Gill recommendations merely to save money.
The proposal to raise the threshold below which most actions must be raised in the sheriff court from £5,000 to a staggering £150,000 is the most contentious. The Government has now indicated that it is open to considering a lower threshold and it is worth assessing why that change of view is welcome and necessary.
The current threshold needs to be revised to ensure that low-value cases are not routinely heard in the Court of Session, but the bill’s £150,000 threshold would result in the transfer of thousands of cases to the sheriff court at a time when 10 courts are closing. That is unsustainable, especially given the evidence that some of our courts are already suffering unacceptable delays.
Only last week, it was reported that cases in Hamilton justice of the peace court, which has absorbed business from the closed Motherwell court, are suffering a nine-month delay and that fiscals are so pressured and underresourced that they do not have time to speak to defence agents at intermediate diets. Consequently, numerous cases are unnecessarily proceeding to trial. In addition, East Lothian faculty of procurators has highlighted delays at Edinburgh JP court, where trials are being set down for as late as March 2015. Access to justice is self-evidently not being served. In those circumstances, approving the transfer of thousands of cases more to the sheriff court would be an act of absolute folly.
The threshold would also compromise access to justice, particularly for victims of complex but less costly personal injury cases, as the bill makes no provision for individuals to employ counsel regardless of the fact that their opponents can and will employ counsel. As a result of that inequality, the number of cases that settle will decrease if business is transferred to the sheriff court, and costs are likely to increase as more civil business proceeds to trial.
Astoundingly, the evidence relied upon to propose the £150,000 limit was weak, being anecdotal rather than empirical. The Scottish Government has not produced any further evidence to support the contention that such a massive increase is in the interests of justice.
Therefore, it is not surprising that the Justice Committee and Finance Committee questioned the robustness of the financial memorandum, especially as it asserts that the bill can be implemented with no new resources. That is simply not credible, which is why the Scottish Conservatives will vote against the financial memorandum.
In light of those concerns, a further evidence-taking session on the effect of court closures, the bill’s proposals and resources should be held with those at the coalface, namely the Crown and Scottish Court Service staff.
Although Eric McQueen, chief executive of the Scottish Court Service, assured the committee that everything would be fine because sheriff courts were running 2,500 fewer sitting days a year compared to four years ago, he failed to mention that the court closures that are currently going through will result in the loss of nearly 2,000 sitting days. The Government has now accepted that further court closures need the approval of the Parliament, rather than only committee scrutiny so, surely, if our justice system is to be able to cope with the changes that the bill introduces, the Parliament must now be given the chance to vote on the court closures that were forced through last year.