Chamber
Plenary, 15 Jun 2006
15 Jun 2006 · S2 · Plenary
Item of business
Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill: <br />Stage 1
The offices of the Lord President and the Lord Justice Clerk are the two most senior in Scotland. The Lord President is the head of the Court of Session—Scotland's superior civil court—and the Lord Justice Clerk is the next most senior judge. Those two judges plus 32 senior colleagues make up the Court of Session. Judges in the Court of Session are also judges in the High Court of Justiciary—the superior criminal court—whose head is the Lord Justice General, an office that is held by the Lord President. The Lord Justice Clerk is the next most senior judge in the High Court.
It is clear that those two offices are hugely important to our justice system and to the efficient running of our most senior criminal and civil courts. Crucially, the judicial business that is undertaken in those courts depends on the ability of the powers and duties that are attached to those offices to continue to be exercised in unforeseen circumstances.
The bill is necessary because of how current legislation stands and the current Lord President's unexpected incapacity. Under current legislation, provision is made for the Lord President's depute—the Lord Justice Clerk—to fill any vacancy temporarily and to carry out some of the Lord President's duties, but no provision is made for the Lord Justice Clerk to carry out the Lord President's statutory duties. It is therefore not only eminently sensible but essential for the Parliament to address the situation through the emergency legislation.
In effect, the bill does four things. First, it provides a catch-all provision that will ensure that, if the Lord President becomes incapacitated or if a vacancy arises, all the various statutory powers and duties that are attached to the office of Lord President are transferred to the Lord Justice Clerk temporarily, together with existing powers that are automatically conferred on him, until the vacancy is filled by a permanent appointment or the Lord President is deemed by a majority of his fellow judges in the inner house of the Court of Session no longer to be incapacitated.
A further provision puts in place a mechanism to empower senior judges to take action when the need arises by issuing a declaration as a result of at least five judges of the inner house of the Court of Session, including the Lord Justice Clerk, deciding that the office of the Lord President is vacant, or that the office holder is incapacitated or is no longer incapacitated. That declaration is to be intimated to the First Minister, who in turn passes it to the Scottish Parliament's Presiding Officer. The bill also makes provision to deal with the domino effect created by the office either of the Lord President or of the Lord Justice Clerk becoming vacant, or the respective office holders being incapacitated.
Crucially, the bill maintains the independence of the judiciary, which is a vital cornerstone of the justice system, by empowering judges in the circumstances outlined to take action free from ministerial interference. The Scottish Conservative party therefore has no hesitation in supporting the general principles of the bill.
It is clear that those two offices are hugely important to our justice system and to the efficient running of our most senior criminal and civil courts. Crucially, the judicial business that is undertaken in those courts depends on the ability of the powers and duties that are attached to those offices to continue to be exercised in unforeseen circumstances.
The bill is necessary because of how current legislation stands and the current Lord President's unexpected incapacity. Under current legislation, provision is made for the Lord President's depute—the Lord Justice Clerk—to fill any vacancy temporarily and to carry out some of the Lord President's duties, but no provision is made for the Lord Justice Clerk to carry out the Lord President's statutory duties. It is therefore not only eminently sensible but essential for the Parliament to address the situation through the emergency legislation.
In effect, the bill does four things. First, it provides a catch-all provision that will ensure that, if the Lord President becomes incapacitated or if a vacancy arises, all the various statutory powers and duties that are attached to the office of Lord President are transferred to the Lord Justice Clerk temporarily, together with existing powers that are automatically conferred on him, until the vacancy is filled by a permanent appointment or the Lord President is deemed by a majority of his fellow judges in the inner house of the Court of Session no longer to be incapacitated.
A further provision puts in place a mechanism to empower senior judges to take action when the need arises by issuing a declaration as a result of at least five judges of the inner house of the Court of Session, including the Lord Justice Clerk, deciding that the office of the Lord President is vacant, or that the office holder is incapacitated or is no longer incapacitated. That declaration is to be intimated to the First Minister, who in turn passes it to the Scottish Parliament's Presiding Officer. The bill also makes provision to deal with the domino effect created by the office either of the Lord President or of the Lord Justice Clerk becoming vacant, or the respective office holders being incapacitated.
Crucially, the bill maintains the independence of the judiciary, which is a vital cornerstone of the justice system, by empowering judges in the circumstances outlined to take action free from ministerial interference. The Scottish Conservative party therefore has no hesitation in supporting the general principles of the bill.
In the same item of business
The Deputy Presiding Officer (Trish Godman):
Lab
The next item of business is a debate on motion S2M-4542, in the name of Cathy Jamieson, that the general principles of the Senior Judiciary (Vacancies and I...
The Minister for Justice (Cathy Jamieson):
Lab
I thank members for allowing the bill to be considered under the procedures that enable legislation to be passed swiftly. I acknowledge the co-operation of t...
Mr Kenny MacAskill (Lothians) (SNP):
SNP
I thank the minister for her eloquent explanation of the bill. The Scottish National Party fully supports the action that the Executive has taken. Some thing...
Margaret Mitchell (Central Scotland) (Con):
Con
The offices of the Lord President and the Lord Justice Clerk are the two most senior in Scotland. The Lord President is the head of the Court of Session—Scot...
Jeremy Purvis (Tweeddale, Ettrick and Lauderdale) (LD):
LD
The Lord President's extended illness is a source of regret. As Kenny MacAskill said, we are in the fortuitous position that, since the creation of the offic...
Gordon Jackson (Glasgow Govan) (Lab):
Lab
I suppose that I should begin with a declaration of interest. I am—some people will be surprised to learn this—a practising member of the Faculty of Advocate...
Stewart Stevenson (Banff and Buchan) (SNP):
SNP
I welcome the fact that Gordon Jackson is contributing to the debate. Given his experience, I ask him to comment on one of the bill's provisions. The Lord Ju...
Gordon Jackson:
Lab
I think that we will leave that one to the minister. As always, Stewart Stevenson has thought of something that never occurred to me. I suppose that he is sa...
Phil Gallie (South of Scotland) (Con):
Con
Will the member take an intervention?
Gordon Jackson:
Lab
I am sorry, but I am almost finished.
Phil Gallie:
Con
It is on that point.
Gordon Jackson:
Lab
All right.
Phil Gallie:
Con
I acknowledge much of what Gordon Jackson says about the independence of the judiciary. However, for the justice system to work, the overall perception of th...
Gordon Jackson:
Lab
The system is good; it is just that a balance needs to be struck. Of course, we need to have public confidence in the judiciary, but if newspapers undermine ...
The Deputy Presiding Officer:
Lab
I remind members that mobile phones must be switched off and not just kept on silent. Someone's phone is interfering with the sound system.
Lord James Douglas-Hamilton (Lothians) (Con):
Con
I strongly support everything that Gordon Jackson has just said.I declare an interest as a non-practising QC. Indeed, I became an advocate a few months after...
The Deputy Presiding Officer:
Lab
I call Maureen Macmillan to be followed by Colin Jackson.
Maureen Macmillan (Highlands and Islands) (Lab):
Lab
As others have done, I wish the Lord President well and a speedy recovery. The Lord President represents the majesty of the law in Scotland. He is the spokes...
The Deputy Presiding Officer:
Lab
It is clearly too early in the morning for me. I now call Colin Fox.
Colin Fox (Lothians) (SSP):
SSP
Presiding Officer, you must have confused me with another sprinter.I apologise to the Minister for Justice for missing her opening remarks in the debate—I wa...
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
I support the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill and I, too, extend my best wishes to Lord Hamilton. I thank Lord Gill for the work ...
Mike Pringle (Edinburgh South) (LD):
LD
The situation is unprecedented. I, too, pass on our best wishes to Lord Hamilton and hope for his speedy recovery. Kenny MacAskill and others mentioned the a...
Bill Aitken (Glasgow) (Con):
Con
There is little to divide us on the issue, but it is perhaps worth while recording that, technically speaking, the difficulties did not start in the 16th cen...
Mr MacAskill:
SNP
The debate has been consensual, which shows that members realise the importance of having an independent judiciary. We may disagree on aspects of our society...
Cathy Jamieson:
Lab
I thank members for taking part in what has been a useful and consensual debate. I hope that the fact that we have tried to be open and transparent and have ...
Pauline McNeill:
Lab
I agree whole-heartedly that the bill should not determine the process. The minister is correct to say that we should trust the judiciary. I just want to cla...
Cathy Jamieson:
Lab
Yes. Pauline McNeill makes a valid point. Of course there needs to be a process. The point that I was making is that by not setting it out in the bill we are...
Stewart Stevenson:
SNP
I apologise for bringing this up, but I think that it is better to do so now than later. I want to raise a related point about the drafting of the bill. The ...
Cathy Jamieson:
Lab
We are attempting to take a belt-and-braces approach, as Bill Aitken described it. I hope that we will not find ourselves in a situation in which both the Lo...
Mr Jim Wallace (Orkney) (LD):
LD
The minister and others have talked about taking a belt-and-braces approach. I perfectly understand why such an approach should be taken and endorse it. Howe...