Hansard

I would like to thank the Justice and Home Affairs Committee, the Subordinate Legislation Committee and the conveners of both committees for their co-operation in dealing with the bill so quickly and efficiently. I am fully aware that the timetable has been very tight and far from ideal. There are special circumstances attached to the bill; this will not be our normal practice.

I welcome the fact that the Justice and Home Affairs Committee has given broad agreement to the general principles of the bill. In my speech, I will suggest some constructive amendments that I hope will address the specific concerns that have been raised.

The principal aim of the bill is to bring aspects of our law into line with the European convention on human rights. It covers three distinct subjects: bail, judicial appointments and district courts. It is clear from two recent Strasbourg cases that our current law on bail is incompatible with the convention. It is agreed on all sides that the law must be changed—the question is how it should be changed. The bill proposes two main amendments to current procedures. First, it places a new statutory duty on sheriffs to consider bail automatically when an accused first appears in court. Secondly, it repeals the bail exclusions that prevent a sheriff from considering bail at all when a person is accused of murder or treason or is accused of certain violent or sexual offences and has a previous conviction for such an offence.

I will deal with the statutory criteria and some of the points that are made in the Justice and Home Affairs Committee's report. First, there is Professor Gane's suggestion that the bill should include specific statutory criteria to guide the courts in making decisions on bail. I agree that that approach is possible, but I do not agree that it is necessary, desirable or achievable in the time available. The only purpose of the bill in that respect is European convention on human rights compliance. A statutory right to bail, with statutory exceptions, would require us to codify Scots common law as modified by Strasbourg jurisprudence. That would be complex and difficult and there would be an unacceptable risk of getting it wrong, particularly as we are working against such a tight time scale.

In any case, there is considerable merit in relying on the common law. Common law offers well-established guidance on when the courts may refuse bail and the bill will allow our courts to interpret and, if necessary, develop that common law in line with convention jurisprudence. Of course, convention jurisprudence is often a moving target. This is the best and safest way forward and therefore I do not propose any amendments to introduce statutory bail criteria.

Secondly, there is an understandable concern about how the removal of current bail exclusions will affect victims. I do not think that the abolition of bail exclusions will endanger victims in any way, but I want to be doubly sure of that. In the first place, I intend to ensure that the court always has information about possible risk to the victim when reaching decisions on bail. We want the police to evaluate such risks thoroughly in all cases involving violent or sexual offences. We have already agreed the principle with the police and the Crown and are now engaged in discussing detailed procedures.

In addition, it is only right that victims should be notified as quickly as possible if an accused person is released on bail—and of the conditions of that release. Police forces and procurators fiscal already have local procedures to notify victims and witnesses of bail decisions, particularly in domestic violence cases. I want to ensure that those procedures are routinely and effectively implemented where there is any threat of risk to a victim or witness. We are already discussing possible arrangements with the police and I hope that we can conclude that work shortly. There is also a wider strategy for victims' issues, as victims are, and will remain, a priority for the Executive.

In the light of the High Court's decision in the Starrs and the Chalmers case—that for the purposes of the ECHR a temporary sheriff is not an independent and impartial tribunal—the bill provides for the abolition of the office of temporary sheriff and creates a new judicial office of part-time sheriff with statutory security of tenure. No one has disputed the need for a new office to provide urgent relief for our sheriff courts, even allowing for the 19 additional permanent appointments that we have made since November last year.

The Justice and Home Affairs Committee expressed a strong view that our proposals do not go far enough to ensure proper statutory security of tenure and it was consequently concerned that the new office could also fall foul of the ECHR. Although we were satisfied that the bill as introduced was compatible with the ECHR, we have re-examined the issue in the light of the committee's concerns. It is essential that the procedures surrounding judicial appointments, reappointments and removal from office should guarantee the independence and impartiality of the relevant postholder.

It is therefore my intention to introduce two Executive amendments that will put matters beyond doubt. The first relates to the appointment of the tribunal authorised to remove part-time sheriffs. The bill currently provides for that tribunal to be appointed by the Scottish ministers after consulting the Lord President of the Court of Session. We propose to amend that provision so that the Lord President alone is responsible for appointing the tribunal; consequently, Scottish ministers will have no hand in the process. That removes any possible doubt about the independence of the tribunal that will have the power to dismiss part-time sheriffs from office.

Secondly, as the bill stands, part-time sheriffs will be appointed for a period of five years and may then be reappointed by Scottish ministers. Concerns have been expressed about whether that could be seen to undermine part-time sheriffs' independence and impartiality. That said, we believe that we need some flexibility on the number and disposition of part-time sheriffs. Such flexibility would be lost if those appointed held office until they were 70 and their appointments could not be terminated unless they were unfit for office.

As it is by no means certain that we will need the same number of part-time sheriffs for all time, we propose to introduce amendments to provide greater security of tenure for part-time sheriffs while maintaining the necessary flexibility. The amendments will provide that any part-time sheriff coming to the end of a five-year term who wishes to seek reappointment will, with certain limited exceptions, automatically be reappointed by Scottish ministers. Those exceptions are: where the person in question has reached the age of 69; where a sheriff principal recommends that the part-time sheriff should not be reappointed; where the part-time sheriff has not sat for at least 50 days during the five-year period; and, finally, where an order has been made with Parliament's approval to reduce the total number of part-time sheriffs.

I should emphasise that the existence of any of those circumstances will not necessarily preclude the reappointment of a person as a part-time sheriff; it simply means that if one of the conditions applies, reappointment is at the discretion of Scottish ministers rather than automatic.

Taken together, those amendments should meet in full the Justice and Home Affairs Committee's ECHR concerns about the new procedures for the appointment and removal of part-time sheriffs. We will of course be happy to explain and discuss our proposals in more detail during stage 2 consideration of the bill.

I also want to address the Subordinate Legislation Committee's concern about the order-making power covering appointments. The order provides that in appointing part-time sheriffs, Scottish ministers shall comply with any procedures that may be set out in regulations; but it does not require the Executive to make such regulations in the first place. I give a firm undertaking that we will consult on such regulations and introduce draft regulations for the Parliament's consideration as soon as possible after the summer recess. I am also happy to give a similar undertaking about the corresponding power to make such regulations for the appointment of justices.

Finally, in response to a recent request from the Lord President, we will introduce one additional amendment on judicial appointments. It will provide a power, subject to the Parliament's approval, to vary the number of inner-house judges. While the size of the outer house has grown significantly in recent years, the size of the inner house has remained constant. That has implications for the efficient and timely handling of appeals generally, among other things. We will lodge an appropriate amendment for consideration at stage 2.