Hansard

I welcome the opportunity to speak on behalf of the Justice Committee on this significant and complex bill, which, thankfully, has been without huge controversy.

As the cabinet secretary said, the bill broadly implements recommendations from Lord Gill’s Scottish civil courts review. I thank those who provided written and oral evidence to the committee on the bill. We received 71 written responses and six supplementary submissions, and heard evidence over five meetings. I also thank the Finance Committee and the Delegated Powers and Law Reform Committee for their reports, and finally I thank team Justice Committee, because of all that we have been through together. To be frank, with the prospect of stage 2 of the Criminal Justice (Scotland) Bill and the bill that we are discussing today, we would have been on our knees. We even got out yesterday—for a change—to visit the High Court and the Court of Session, which made tangible some of the proposals in the bill. It was a very interesting day, but I do not think that we will have many more visits.

The committee welcomes the general principles of the bill. From the evidence that we heard, there is no doubt that court reform is long overdue. However, in certain areas we remain to be convinced that some of the measures will achieve what they set out to achieve. That is us doing our job, in my book. I will highlight—if I have time—four key areas of the bill about which the committee has specific comments to make.

The first area is the privative jurisdiction of the sheriff court. The bill proposes to increase the sheriff court monetary threshold from £5,000 to £150,000, following the Gill review. Much of the evidence that we heard supported the principle of raising the threshold, but many witnesses said that £150,000 is a bit too high. The committee noted that the courts in Northern Ireland hear cases with values of up to £30,000, while in England and Wales cases cannot be raised in the High Court unless they have a value of £25,000 or more. In evidence, some witnesses argued for a staged increase, with figures of £30,000 and £50,000 being suggested. However, Lord Gill made clear to the committee his view that £150,000 is an appropriate limit.

The committee supports the proposal to increase the privative jurisdiction of the sheriff court but considers that the leap to £150,000 may be too great. We do not support staged increases, but we have recommended that the Scottish Government considers introducing a lower limit.

We also heard evidence on the impact of a higher monetary threshold on access to counsel. The Faculty of Advocates expressed concern—we would expect that—about the impact that that would have on the bar. Some junior members of the faculty highlighted that the work that would be transferred out of the Court of Session would be work that has traditionally been undertaken by junior members of the bar. The concern was that they might then decide to look for other work, thereby draining the profession of talent—they were speaking up for their profession, quite rightly.

Sheriff Principal Taylor recommended that the existing test for sanction, which the cabinet secretary referred to, should be expanded to include a general test of reasonableness and the need to have regard to the resources deployed by the other party to the case, which is the issue that Duncan McNeil raised and which is known as the equality of arms factor. The committee thought that the recommendation made sense, so we recommended that the Government lodge an amendment at stage 2 to introduce that new test.

We certainly agree with the remit of cases between courts. There was general support for the proposal in the bill to ensure that cases are heard at the appropriate level.

The bill introduces a new test—that of exceptional circumstances—for allowing the Court of Session to take into account its business and operational needs before a case is remitted. We heard concerns from witnesses about that. For example, the Faculty of Advocates suggested that the test was “far too restrictive”, and the Forum of Insurance Lawyers argued that

“discriminating between cases on the grounds of ‘operational needs’ may not achieve the stated aim of justice”

as that could lead

“to lack of consistency in the way in which similar cases are dealt with.”

Significantly, Lord Gill raised concerns about the appropriateness of a court refusing a remitted case because of

“business and other operational needs”.

He suggested that that test might breach the European convention on human rights. The minister subsequently advised that she had reflected on those concerns and would consider the level of the test, with a view to lodging an amendment at stage 2. We welcome that.

In general, the committee considered that a test for the remitting of cases is a necessary safeguard to ensure that the most complex and serious of cases can be heard in the most appropriate court with the most appropriate level of legal representation.

To reduce the pressure on sheriff courts, the Gill review recommended the creation of a specialist personal injury court that would be based at Edinburgh sheriff court. The review

“expected that personal injury claimants would still have the right to sue in any sheriff court with jurisdiction.”

The bill makes provision for the Scottish ministers to give effect to that recommendation through secondary legislation. It allows for

“the establishment of a specialist personal injury court in Edinburgh and/or other locations, and for other types of specialist court to be created”,

such as a commercial court. The policy memorandum envisages that two specialist sheriffs would be required to staff the new court, and in evidence there was widespread support for the creation of a personal injury court. However, concerns were raised about the capacity of the new court by the Educational Institute of Scotland, the Law Society and the Faculty of Advocates, among others.

Having noted the concerns of witnesses, we recommended that the court be established before the new level of privative jurisdiction is introduced so that it is fully equipped with electronic and administrative systems to ensure that it can work effectively from day 1.

I move quickly on to appeals, on which the committee made an important point. The bill provides for a nationwide sheriff appeal court to sit as a bench of one. It also allows appeals to be heard either by sheriffs principal or by sheriffs of five years’ standing, who would sit as appeal sheriffs. Their judgments would be binding across Scotland.

Those provisions differ slightly from those in the Gill review, which considered that the sheriff appeal court should sit as a bench of three, with at least one being a sheriff principal. In evidence, Lord Gill accepted that the Scottish Government had reached a different view. When pressed, he confirmed that his personal view would be to have at least one sheriff principal sitting, even when the court considered procedural matters. The committee welcomed the establishment of the sheriff appeal court, with decisions that would be binding on sheriffs and justices of the peace across Scotland. However, we considered that all appeals should be heard by sheriffs principal rather than sheriffs.

Yesterday, when the committee had the opportunity to get a breath of fresh air by going to visit the Court of Session and the High Court, we visited the Judicial Institute for Scotland’s learning suite, where judges go through continual training. We found the visit useful in considering whether we will have specialist sheriffs in future. Incredible as it might be for members to believe, I found that I have lost touch—in courts nowadays, a great deal is made of electronic devices, with screens showing appeals coming in from elsewhere. All that will ease pressure on the courts, which brings my point within the context of the Courts Reform (Scotland) Bill—I had to get our wee visit in. The committee supports the general principles of the bill.