Chamber
Plenary, 22 Jun 2000
22 Jun 2000 · S1 · Plenary
Item of business
Bail, Judicial Appointments etc (Scotland) Bill: Stage 1
I am full of admiration for all those who served on the Justice and Home Affairs Committee, when I see the amount of work that they have done and detail that they have had to apply their minds to. I congratulate them and the convener of the Justice and Home Affairs Committee, Roseanna Cunningham, who made such a distinguished contribution.
Like other members, I must declare an interest. I am Fergus Ewing's senior partner. For that, I get no remuneration whatsoever, but my name is on the notepaper, which he likes for some reason, and for that privilege I pay enormous sums of money to the Law Society of Scotland, so that I can be jointly, severally and responsibly liable for any defaults that he and my daughter Annabelle, who is his partner, care to make.
Another interest is that I was secretary and then president of the Glasgow Bar Association. Ross Harper, whom Robert Brown mentioned, was one of our distinguished presidents at one time. We fought on this issue of shrieval appointments and, to some extent, we were successful. Originally, it was young Edinburgh advocates—no harm to Lord James Douglas-Hamilton, who is not just so young as he was when I first instructed him. We used to say, "Let us have no more of those beardless Edinburgh boys on the bench." We were totally devoted to that and we succeeded. The whole system changed for the better, although it may not be good enough yet, as there might not be enough women and ethnic minorities. However, it is definitely a changed system from when the Glasgow Bar Association came into existence.
On part-time sheriffs, I would issue the warning that this will not necessarily meet the challenge of the ECHR, although a lot of what the Deputy First Minister said today has gone a long way towards doing so. I had a note down to complain about the removal and the nature of the tribunal, but that is to be changed.
On reappointment, there is a proposal that that is to be changed to some extent. I could see a flaw in a part-time sheriff looking ahead and thinking, "Will I be reappointed?" It could be argued that that could affect his conduct of cases that he sat on. However, some automatic reappointment would take that away.
I noticed that one of the possible exceptions to automatic reappointment would be the recommendation of the sheriff principal. I think that is what the Deputy First Minister said—I had to write all this down as Mr Wallace read it out. Other exceptions would be if the part-time sheriff was 69 and if he had failed to sit for 50 days during the five-year period, but I think that is bringing us back into the danger zone. After all, look at Lord Cullen's opinion on temporary sheriffs. They did not have security of tenure; they could be removed at will. Now there is no right of appeal, as was mentioned earlier. Those are all worrying aspects.
There is also the question of the convention suggesting that the judiciary should be independent not just in security but in remuneration and pensions. I am not sure that it will be independent in that respect, as I do not think that there is going to be a pension. Again, it seems that we are getting justice on the cheap.
On the question of remuneration, there has been some discussion of solicitors acting as part-time sheriffs, but there is silence about solicitor advocates acting in that capacity, although that is a recognised category that did not exist before. What about advocates acting as part-time sheriffs? They are subject to the discipline of the dean of the Faculty of Advocates. Will they be subject to the dean, the sheriff principal, or both?
New section 11A(6), on the appointment of part-time sheriffs, says that they will be subject to instructions and other provisions that are made by the sheriff principal. Anybody who has been in a busy practice will know that that is a nonsense. It is the sheriff clerks who allocate the cases and call up the need for a sheriff. The sheriff principal does not know about that—I think that my legal colleague Robert Brown is nodding in agreement—and cannot be in control.
On bail, I agree that there should not be a statutory right to bail. I am pleased that people do not have to make an application for bail. How painful it has all been in my memory of cases. Like Pauline McNeill, I do not believe in statutory guidelines as I do not think that they will solve problems. Certainly, that is the view of the Sheriffs Association.
On the issue of exclusions, I agree with Gordon Jackson. The victim has been mentioned. The victim should not have the automatic right to appear—that would be cumbersome and would make the chaos in the courts worse. However, I agree that victims should be informed, in good procedure, of the release on bail of someone who had harmed them.
I will end by saying that we cannot get justice on the cheap. The solution is to accept that we need more sheriffs and to pay them. We should accept that paying sheriffs the proper salary that they attract is the cost of justice. We should not try, as we used to do with the temps, to get justice on the cheap.
I agree that there should be a Scottish human rights commission.
Like other members, I must declare an interest. I am Fergus Ewing's senior partner. For that, I get no remuneration whatsoever, but my name is on the notepaper, which he likes for some reason, and for that privilege I pay enormous sums of money to the Law Society of Scotland, so that I can be jointly, severally and responsibly liable for any defaults that he and my daughter Annabelle, who is his partner, care to make.
Another interest is that I was secretary and then president of the Glasgow Bar Association. Ross Harper, whom Robert Brown mentioned, was one of our distinguished presidents at one time. We fought on this issue of shrieval appointments and, to some extent, we were successful. Originally, it was young Edinburgh advocates—no harm to Lord James Douglas-Hamilton, who is not just so young as he was when I first instructed him. We used to say, "Let us have no more of those beardless Edinburgh boys on the bench." We were totally devoted to that and we succeeded. The whole system changed for the better, although it may not be good enough yet, as there might not be enough women and ethnic minorities. However, it is definitely a changed system from when the Glasgow Bar Association came into existence.
On part-time sheriffs, I would issue the warning that this will not necessarily meet the challenge of the ECHR, although a lot of what the Deputy First Minister said today has gone a long way towards doing so. I had a note down to complain about the removal and the nature of the tribunal, but that is to be changed.
On reappointment, there is a proposal that that is to be changed to some extent. I could see a flaw in a part-time sheriff looking ahead and thinking, "Will I be reappointed?" It could be argued that that could affect his conduct of cases that he sat on. However, some automatic reappointment would take that away.
I noticed that one of the possible exceptions to automatic reappointment would be the recommendation of the sheriff principal. I think that is what the Deputy First Minister said—I had to write all this down as Mr Wallace read it out. Other exceptions would be if the part-time sheriff was 69 and if he had failed to sit for 50 days during the five-year period, but I think that is bringing us back into the danger zone. After all, look at Lord Cullen's opinion on temporary sheriffs. They did not have security of tenure; they could be removed at will. Now there is no right of appeal, as was mentioned earlier. Those are all worrying aspects.
There is also the question of the convention suggesting that the judiciary should be independent not just in security but in remuneration and pensions. I am not sure that it will be independent in that respect, as I do not think that there is going to be a pension. Again, it seems that we are getting justice on the cheap.
On the question of remuneration, there has been some discussion of solicitors acting as part-time sheriffs, but there is silence about solicitor advocates acting in that capacity, although that is a recognised category that did not exist before. What about advocates acting as part-time sheriffs? They are subject to the discipline of the dean of the Faculty of Advocates. Will they be subject to the dean, the sheriff principal, or both?
New section 11A(6), on the appointment of part-time sheriffs, says that they will be subject to instructions and other provisions that are made by the sheriff principal. Anybody who has been in a busy practice will know that that is a nonsense. It is the sheriff clerks who allocate the cases and call up the need for a sheriff. The sheriff principal does not know about that—I think that my legal colleague Robert Brown is nodding in agreement—and cannot be in control.
On bail, I agree that there should not be a statutory right to bail. I am pleased that people do not have to make an application for bail. How painful it has all been in my memory of cases. Like Pauline McNeill, I do not believe in statutory guidelines as I do not think that they will solve problems. Certainly, that is the view of the Sheriffs Association.
On the issue of exclusions, I agree with Gordon Jackson. The victim has been mentioned. The victim should not have the automatic right to appear—that would be cumbersome and would make the chaos in the courts worse. However, I agree that victims should be informed, in good procedure, of the release on bail of someone who had harmed them.
I will end by saying that we cannot get justice on the cheap. The solution is to accept that we need more sheriffs and to pay them. We should accept that paying sheriffs the proper salary that they attract is the cost of justice. We should not try, as we used to do with the temps, to get justice on the cheap.
I agree that there should be a Scottish human rights commission.
In the same item of business
The Presiding Officer (Sir David Steel):
NPA
We move to our main debate, on motion S1M-984, in the name of Jim Wallace, on the general principles of the Bail, Judicial Appointments etc (Scotland) Bill.I...
The Deputy First Minister and Minister for Justice (Mr Jim Wallace):
LD
I would like to thank the Justice and Home Affairs Committee, the Subordinate Legislation Committee and the conveners of both committees for their co-operati...
Lord James Douglas-Hamilton (Lothians) (Con):
Con
Does the minister think that a sheriff who is relieved of his duties should have the same right of appeal as everyone else?
Mr Wallace:
LD
Lord James is referring to full-time sheriffs rather than part-time sheriffs. He will be aware that we have in place procedures for the removal of full-time ...
Fergus Ewing (Inverness East, Nairn and Lochaber) (SNP):
SNP
As the minister will be aware, that issue was considered in some detail in the Subordinate Legislation Committee. The civil servants to whom we spoke said th...
Mr Wallace:
LD
I saw that reference in the report and queried it. I think that there was a misunderstanding of what was said. What was meant—and if I am wrong I will make s...
Roseanna Cunningham (Perth) (SNP):
SNP
I acknowledge what the minister has said in thanking the Justice and Home Affairs Committee, but he will probably not be surprised to hear that in my capacit...
Mr Jim Wallace:
LD
I do not want to be misunderstood or for Ms Cunningham to feel that she has been misled in any way. I want to go back for a moment to the concerns that victi...
Roseanna Cunningham:
SNP
Yes, I was aware that although it might have been possible to legislate, it was equally likely that changes would be made by procedural means. Clearly it is ...
Phil Gallie (South of Scotland) (Con):
Con
Another day, another bill. Not another bill because our mission is to improve the lot of those who had a vision of this new Parliament transforming their liv...
The Deputy Minister for Justice (Angus MacKay) rose—
Lab
Phil Gallie:
Con
I make no apologies to Roseanna Cunningham for picking up this issue, because it is another bill that will not be considered as carefully or as rationally as...
Angus MacKay:
Lab
I said to Phil Gallie in a previous debate that, despite his criticisms of the incorporation of the ECHR and its effect on domestic law, the Conservatives di...
Phil Gallie:
Con
The Conservatives back in 1997 recognised that we had been defeated and we had no Scottish MPs. The Conservatives in the UK Parliament recognised that and to...
The Deputy Presiding Officer (Mr George Reid):
SNP
We have just under an hour for general debate and only nine speakers, so speeches can be relatively generous by normal standards.
Christine Grahame (South of Scotland) (SNP):
SNP
Oh no, please.
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
This bill in three parts deals with subjects that are almost separate from one another. The common thread is to make certain that procedures, laws and appoin...
Fergus Ewing (Inverness East, Nairn and Lochaber) (SNP):
SNP
I should start by declaring a potential interest in that if I was, by any mischance, to cease to be a member of the Parliament, in theory I would be eligible...
Robert Brown (Glasgow) (LD):
LD
Re-elect him.
Fergus Ewing:
SNP
I am bound to reflect that my becoming a sheriff is about as likely as the Prime Minister being made patron of the women's institute.What we are seeing today...
Gordon Jackson (Glasgow Govan) (Lab):
Lab
Will the member give way?
Fergus Ewing:
SNP
In a second. I was about to ask myself a rhetorical question of the sort with which Gordon Jackson is familiar.Is it really the case that a reasonable person...
Gordon Jackson rose—
Lab
Fergus Ewing:
SNP
I was about to sit down, but if Gordon Jackson really wants to ask me a question, I am happy to respond.
Gordon Jackson:
Lab
I do want to ask the member a question. There is a principle that judges should not be engaged in day-to-day politics. It applies to sheriffs and to judges, ...
Fergus Ewing:
SNP
I accept that that argument can be made. However, under the existing system no successful challenge has been made to JPs on those grounds. I remind Gordon Ja...
David Mundell (South of Scotland) (Con):
Con
Unusually, I intend to echo much of what Fergus Ewing has said. I will also deal with two points that Gordon Jackson made.First, when the Subordinate Legisla...
Gordon Jackson (Glasgow Govan) (Lab):
Lab
This is quite a good bill, or at least it will be on Tuesday by the time it has been amended somewhat. I welcome it, partly because we are doing something to...
Phil Gallie:
Con
Gordon Jackson said at the beginning that he thought that the bill was good and that it was necessary. Perhaps he is right, in that the measures within the b...
Gordon Jackson:
Lab
As a member of the Justice and Home Affairs Committee, I would be the last person to abandon the line that we are over-worked. We are overworked—we have too ...