CHAPTER 12 THE SCOTTISH COURT SERVICE
12.1 The issue of judicial involvement in the governance of the Scottish Court Service is not new. Most recently, the agency review 8 led by Douglas Osler in 2005 concluded that the Court Service should remain an agency but proposed that the judiciary should have a role on its Board. The report was written before the publication of the consultation paper, but the questions it raised were familiar at the time of the review. In its conclusions, the report of the agency review anticipated the possible unification of the judiciary and recommended that agency status be revisited:
"further consideration of the relationship between a, by then, unified judiciary … and the SCS should be undertaken in three years time."
12.2 There were some strong views in the consultation on the link between the unification of the judiciary and the governance of the Court Service. Put simply, the view was that the Lord President should not take an overall responsibility for the efficient disposal of business in all courts without having authority over the administrative support for those courts. We understand the force of that argument, and have therefore entered into more detailed discussion about how more judicial authority over the Court Service would work in practice, taking into account the continuing strategic role of Scottish Ministers, accountability to Parliament and the need for strong working relationships with other bodies in the justice system.
12.3 We recognise that we did not consult specifically on proposals to change the way the Court Service is governed, and we would not wish to make any change without hearing the views of all those with an interest in this matter. Discussion on the details is continuing, but the following features have emerged as likely to have a place in a revised governance model. We would especially welcome thoughts on these.
(i) The Court Service should be overseen by a non-executive board, chaired by the Lord President.
(ii) Other directors on the board should have a range of different backgrounds and interests, including representatives of the different levels of the judiciary and a nominee from the Scottish Executive Justice Department.
(iii) The chief executive would report to the Court Service Board, which would set overall policy for, and monitor the performance of, the Court Service, taking account of strategic priorities agreed between the board and Ministers. Within the framework set by the board, the chief executive would have delegated authority to take operational decisions.
(iv) Resources would be allocated to the Court Service by Ministers in line with the agreed strategic priorities, and subject to approval by Parliament.
(v) The chief executive would be the accountable officer, in line with sections 14 and 15 of the Public Finance and Accountability (Scotland) Act 2000, and would be required to report as appropriate to the Parliament and to Ministers on the performance of the Court Service and its use of public funds.
(vi) From time to time the Lord President, as Chair of the Court Service Board, might also provide an account of policy set by the Board to Parliament.
12.4 Including these features would move us away from the concept of the judiciary as customers of the Scottish Court Service. Rather, it would put the Lord President in the position as head of the courts, where he or she would have the necessary authority and the resources at his or her disposal to ensure that court business was managed in the interests of justice. A reformed Court Service under the chairmanship of the Lord President would continue to work with other bodies to improve the overall effectiveness of the justice system.
12.5 As we have said earlier in this paper, the greater involvement of the judiciary in the work of the Scottish Court Service offers the potential to make real changes for the benefit of all who use, or rely upon, the services of the courts. The ongoing discussions with the judiciary, and the comments that we receive to this paper, will help us decide what is the right provision to make.