Chamber
Plenary, 14 May 2008
14 May 2008 · S3 · Plenary
Item of business
Judiciary and Courts (Scotland) Bill: Stage 1
I welcome the opportunity to speak to the stage 1 report on the Judiciary and Courts (Scotland) Bill and the cabinet secretary's opening remarks. I acknowledge that one of the guiding principles of the bill is to enhance the independence of the judiciary, and independence is always a timely and worthwhile debating point.
Production of the stage 1 report was assisted by a significant number of witnesses who gave evidence to the Justice Committee. I welcome the opportunity to place on the record my appreciation of them, the support staff, the clerks, the Scottish Parliament information centre and other members of the committee for assisting me in considering the bill.
The independence of the judiciary is a principal consideration, and it dates back to the consultation paper "Strengthening Judicial Independence in a Modern Scotland", which was published in February 2006. The benefit of being a member of the Justice Committee is that the evidence-gathering process highlights a need to investigate matters that could fall below the radar. The bill introduces a degree of much-needed modernity to the administration of justice in Scotland. The old adage that justice must be seen to be done is important in introducing an element of glasnost into the system.
It is worth noting that the bill provides a statutory basis for the Judicial Appointments Board and details its principal functions. A transparent process for appointing judges will, I hope, ensure that the public have confidence and that the system effectively dispenses justice on a daily basis. In evidence to the Justice Committee, there was support for modernising the current arrangements and replacing an essentially ad hoc arrangement, based on custom and practice, with one that places the Judicial Appointments Board on a statutory footing.
It should be noted that written and oral evidence to the committee presented several critiques of the Judicial Appointments Board that had been made over the years. The most notable critic in recent times was Professor Bonnington, who stated in the Journal of the Law Society of Scotland in May 2005 that some lawyers
"of less than average legal ability"
had been appointed to the bench. That might or might not be overstating the point, but it would be wrong to dismiss such opinions out of hand.
The Judicial Appointments Board is important, and its role in delivery will increase over the years. Judicial independence is highlighted in annex A to the stage 1 report. The Scottish Government's response stated:
"One of the avenues for securing the independence of individual judges relates to the method by which judges are selected."
Another key aspect of the Justice Committee's deliberations was the governance of the Scottish Court Service. The backdrop is that, currently, the chief executive of the Scottish Court Service is responsible solely to ministers and the Parliament. The Osler review that the previous Administration established in June 2005 set in train a process of reviewing the governance of the courts and the future relationships among the Scottish Court Service, the judiciary and the Government. The step change that the Osler review proposed brings us up to date with the bill, which envisages that the SCS will have thirteen members and will be chaired by the Lord President. The bill also provides that the SCS will have responsibility for policy implementation and will be independent of the Scottish ministers. That said, the bill proposes that the SCS will operate according to a corporate plan that is agreed by ministers.
The Justice Committee had a vital discussion on wider accountability, particularly in respect of section 66(2). That point is also stated in paragraph 209 on page 35 of the stage 1 report. In questioning witnesses and reviewing the written evidence, my overriding aim was to ensure that, together with the enhanced independence of the judiciary and quasi-judicial bodies, the bill provides accountability. Some people might say that, in real terms, accountability will be diminished, because the bill will establish the Scottish Court Service as a body corporate headed by the Lord President. It is worth noting that the Lord President is not compelled to give evidence to the Parliament, given his legal standing under the Scotland Act 1998. Equally, the present arrangements for the Scottish Court Service are not satisfactory. As stated in paragraph 209, some members remain to be convinced on the issue.
The Justice Committee's report has highlighted the need to consider other issues relating to the judiciary, including my point about accountability. The committee has been up front and centre about the need for a mandatory requirement for the judiciary to undertake training, as other members have pointed out. Another issue is the need to ensure that the bill stands the test of time. The resulting act must ensure that the role that the current Lord President—Lord Hamilton—sees for himself can be applied to future Lord Presidents.
I commend the Justice Committee's stage 1 report and I look forward to examining the bill further as it proceeds through Parliament.
Production of the stage 1 report was assisted by a significant number of witnesses who gave evidence to the Justice Committee. I welcome the opportunity to place on the record my appreciation of them, the support staff, the clerks, the Scottish Parliament information centre and other members of the committee for assisting me in considering the bill.
The independence of the judiciary is a principal consideration, and it dates back to the consultation paper "Strengthening Judicial Independence in a Modern Scotland", which was published in February 2006. The benefit of being a member of the Justice Committee is that the evidence-gathering process highlights a need to investigate matters that could fall below the radar. The bill introduces a degree of much-needed modernity to the administration of justice in Scotland. The old adage that justice must be seen to be done is important in introducing an element of glasnost into the system.
It is worth noting that the bill provides a statutory basis for the Judicial Appointments Board and details its principal functions. A transparent process for appointing judges will, I hope, ensure that the public have confidence and that the system effectively dispenses justice on a daily basis. In evidence to the Justice Committee, there was support for modernising the current arrangements and replacing an essentially ad hoc arrangement, based on custom and practice, with one that places the Judicial Appointments Board on a statutory footing.
It should be noted that written and oral evidence to the committee presented several critiques of the Judicial Appointments Board that had been made over the years. The most notable critic in recent times was Professor Bonnington, who stated in the Journal of the Law Society of Scotland in May 2005 that some lawyers
"of less than average legal ability"
had been appointed to the bench. That might or might not be overstating the point, but it would be wrong to dismiss such opinions out of hand.
The Judicial Appointments Board is important, and its role in delivery will increase over the years. Judicial independence is highlighted in annex A to the stage 1 report. The Scottish Government's response stated:
"One of the avenues for securing the independence of individual judges relates to the method by which judges are selected."
Another key aspect of the Justice Committee's deliberations was the governance of the Scottish Court Service. The backdrop is that, currently, the chief executive of the Scottish Court Service is responsible solely to ministers and the Parliament. The Osler review that the previous Administration established in June 2005 set in train a process of reviewing the governance of the courts and the future relationships among the Scottish Court Service, the judiciary and the Government. The step change that the Osler review proposed brings us up to date with the bill, which envisages that the SCS will have thirteen members and will be chaired by the Lord President. The bill also provides that the SCS will have responsibility for policy implementation and will be independent of the Scottish ministers. That said, the bill proposes that the SCS will operate according to a corporate plan that is agreed by ministers.
The Justice Committee had a vital discussion on wider accountability, particularly in respect of section 66(2). That point is also stated in paragraph 209 on page 35 of the stage 1 report. In questioning witnesses and reviewing the written evidence, my overriding aim was to ensure that, together with the enhanced independence of the judiciary and quasi-judicial bodies, the bill provides accountability. Some people might say that, in real terms, accountability will be diminished, because the bill will establish the Scottish Court Service as a body corporate headed by the Lord President. It is worth noting that the Lord President is not compelled to give evidence to the Parliament, given his legal standing under the Scotland Act 1998. Equally, the present arrangements for the Scottish Court Service are not satisfactory. As stated in paragraph 209, some members remain to be convinced on the issue.
The Justice Committee's report has highlighted the need to consider other issues relating to the judiciary, including my point about accountability. The committee has been up front and centre about the need for a mandatory requirement for the judiciary to undertake training, as other members have pointed out. Another issue is the need to ensure that the bill stands the test of time. The resulting act must ensure that the role that the current Lord President—Lord Hamilton—sees for himself can be applied to future Lord Presidents.
I commend the Justice Committee's stage 1 report and I look forward to examining the bill further as it proceeds through Parliament.
In the same item of business
The Presiding Officer (Alex Fergusson):
NPA
The next item of business is a debate on motion S3M-1717, in the name of Kenny MacAskill, on the Judiciary and Courts (Scotland) Bill.
The Cabinet Secretary for Justice (Kenny MacAskill):
SNP
I begin by acknowledging the considerable work of the Justice Committee, and of the Finance Committee and the Subordinate Legislation Committee, in preparing...
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
I, too, welcome the continuation of the principle that the Lord President is not a compellable witness. However, if control of the Scottish Court Service tra...
Kenny MacAskill:
SNP
It has already been made clear that the chief executive will be the accountable officer. They will be accountable and, in the main, they would come to Parlia...
Bill Aitken (Glasgow) (Con):
Con
The bill started out in a somewhat different form under the previous Executive. Following a call for evidence that resulted in 15 written submissions, the co...
Paul Martin (Glasgow Springburn) (Lab):
Lab
On behalf of Labour members, I associate myself with the remarks of the Justice Committee convener about our support staff. We were served well, and we recei...
Gavin Brown (Lothians) (Con):
Con
Under the bill, to whom does the independent judicial complaints reviewer report if they are unhappy with the result of their investigation? My understanding...
Paul Martin:
Lab
I confirm to the member that the Lord President will be consulted when the reviewer is appointed by the Cabinet Secretary for Justice. The issue is how to en...
John Lamont (Roxburgh and Berwickshire) (Con):
Con
I thank the Justice Committee for its work in connection with the bill and its preparation of the stage 1 report.Democracy in any country can flourish only i...
Margaret Smith (Edinburgh West) (LD):
LD
Due to my recent illness, unfortunately I was absent from some of the Justice Committee's deliberations on the Judiciary and Courts (Scotland) Bill. I compli...
The Deputy Presiding Officer (Trish Godman):
Lab
We now move to the open debate. Speeches will be a tight six minutes.
Stuart McMillan (West of Scotland) (SNP):
SNP
I concur with earlier comments about the work of the Justice Committee clerks and their assistance during the evidence sessions on the bill.I am grateful for...
Bill Butler (Glasgow Anniesland) (Lab):
Lab
As the Justice Committee's deputy convener, I support the motion in the Cabinet Secretary for Justice's name. Like other committee members, I thank the clerk...
John Wilson (Central Scotland) (SNP):
SNP
I welcome the opportunity to speak to the stage 1 report on the Judiciary and Courts (Scotland) Bill and the cabinet secretary's opening remarks. I acknowled...
Cathie Craigie (Cumbernauld and Kilsyth) (Lab):
Lab
As other members have reminded us, the Judiciary and Courts (Scotland) Bill is the first piece of legislation that the Justice Committee has considered in th...
Nigel Don (North East Scotland) (SNP):
SNP
I intend to sweep up some remaining issues; necessarily, I will be brief.First, section 1 of the bill relates to the common-law offence of interfering with t...
James Kelly (Glasgow Rutherglen) (Lab):
Lab
Although the bill covers many technical legal issues, it is also important that we remember the communities that we represent, and the need to put together a...
Margaret Smith:
LD
I welcome the fact that the cabinet secretary has been prepared to address some of the areas of concern that the committee raised but, as we have heard, ther...
Gavin Brown (Lothians) (Con):
Con
My colleague John Lamont said that the Scottish Conservatives fully agree with the principles of the bill and will support it at decision time. In the time t...
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
I commend the work of the members of the Justice Committee in producing their report on the Judiciary and Courts (Scotland) Bill.The main themes of the bill ...
Kenny MacAskill:
SNP
I welcome members' contributions and the tenor of the debate, which is perhaps understandable, given that the genesis of the bill was under the previous Exec...
Bill Aitken:
Con
Does the cabinet secretary agree that it would be particularly useful to the committee's considerations if Douglas Osler would quantify the existing judicial...
Kenny MacAskill:
SNP
There is a lot of merit and logic in that. My view has always been that it is best to discuss a remit with the person to whom one is ultimately giving it, be...