Meeting of the Parliament 21 May 2014
Following Lord Gill’s review of the civil courts, he described the existing system as
“failing to deliver justice ... expeditiously, economically or efficiently.”
Scottish Liberal Democrats agree with many of his recommendations, which compel Parliament to modernise Scotland’s court structures and procedures, and to equip them to better respond to the demands that are placed on them. However, in the few minutes that are available, I will focus on just some of the issues that the substantial package of reforms has inevitably presented.
One of the most contentious issues is that of the proposed jurisdictions of the Court of Session and the sheriff court. There now appears to be a consensus that increasing the privative jurisdiction of the sheriff courts to £150,000 would set the bar far too high. Although transferring some business from the Court of Session is not objectionable, that would be too significant a leap from the existing £5,000 threshold and would be considerably higher than the equivalent limits elsewhere in the United Kingdom. The evidence that informed the revised jurisdiction was scant, and the Scottish Parliament information centre said that even what evidence there is should be “treated with care”.
Furthermore, organisations from Unison to the Faculty of Advocates are worried that the proposed shift in business will remove the right of many litigants to be routinely represented by counsel, which would have implications not only for access to justice but for the possibility of attaining early and efficient settlement of cases. I am therefore grateful to the minister for indicating that she is open to considering a lower limit at stage 2.
During our stage 1 deliberations, I also queried the appropriateness of sections 88(4) to 88(6), which contain three tests to help to establish whether to remit a case to the Court of Session. I am pleased that Lord Gill subsequently agreed that the tests were “too high” and
“almost certainly ... in breach of the European Convention on Human Rights.”
Again, I appreciate the minister’s commitment to heed that advice and to lodge amendments on that at stage 2.
I suggest that we must also return to other issues, including the need to ensure that sheriff specialisation is properly developed in rural areas, and whether the limit for bringing applications for judicial review is overly restrictive, particularly in the light of the fact that the Scottish Government has confirmed its understanding that the time limit will supersede the time limits in the Scotland Act 1998 and the Human Rights Act 1998, so that judicial reviews on human rights grounds will have to be brought within three months, rather than within the current time limit of one year.
The committee, along with my colleagues Liam McArthur and Tavish Scott, is concerned about the impact that the abolition of honorary sheriffs, who are crucial in the absence of a resident sheriff, could have on island and remote communities. We believe that robust alternatives must be established to prevent the further erosion of locally delivered justice.
It would be remiss not to note that more local courts will shortly close. Courts in 10 towns have already shut and those in Stonehaven, Arbroath and Cupar will follow next Friday. Whether the remaining courts, such as Aberdeen, which is already close to capacity, will be able to cope with the increase in business that the bill could initiate, as well as the influx of business from the closure of their neighbours, remains to be seen.
Many of the recommendations of the Gill review are sound. There is broad consensus on the need to address the disproportionate cost of litigation, to increase specialisation among courts and judges, and to improve efficiency through adopting a case management approach to the conduct and disposal of court business. However, I share the concerns that the Finance Committee expressed in its report on the bill that the financial memorandum is at best incoherent and at worst sorely deficient. The committee’s observations on the need to clarify how the purported costs and savings will be achieved—for example, on the specialist personal injury court and legal aid—must be heeded.
I am therefore disappointed that the Scottish Government has not provided an update, let alone a full response, to the Finance Committee’s concerns prior to the debate. In the absence of that, Scottish Liberal Democrats will support the general principles of the bill, but we cannot endorse the financial memorandum, on the basis that it has not been shown to be sufficiently robust.
17:09