EXECUTIVE SUMMARY
Introduction
The consultation paper on Strengthening Judicial Independence in a Modern Scotland was launched on 8 February 2006. Sixty responses were received and this report presents an analysis of the responses to the written consultation. A copy of this report can be accessed on the Scottish Government website; www.scotland.gov.uk.
Copies of non-confidential responses are available in the Scottish Government library and can also be accessed on the Scottish Government website; www.scotland.gov.uk.
The consultation process
The consultation paper was circulated widely. The list of consultees is Annex A. The consultation paper was also published on the Scottish Government website. Responses were requested within 12 weeks by 3 May 2006 although some responses was submitted after that date. The list of the respondents is attached at Annex B, except for those respondents who requested that their name and/or response be kept confidential. The comments of respondents who requested confidentiality have been included in the analysis, but not attributed.
This paper presents both a quantitative and a qualitative analysis of the responses received.
Summary of views expressed
The consultation paper covered 6 main areas, broken down further into 11 themes. There were 69 questions on specific proposals or issues on which views were sought. The views from respondents are summarised in the paragraphs below, covering the 6 main areas of the report.
1. Unified Judiciary
A range of views were expressed about the proposal to strengthen the independence of the judiciary with a statutory guarantee. Some respondents welcomed the proposal; others questioned whether a statutory statement of what was already a recognised constitutional principle would add any value. The Lord President and judges said that a statutory provision by itself was not an effective guarantee and that practical measures were also required. Notwithstanding the doubt about what a statutory guarantee would add, there was a feeling that the government in Scotland should be bound by such a statutory guarantee. Overall therefore, there was support for some provision being made.
There was considerable support for conferring the status of head of the judiciary upon the Lord President. However, there were concerns about the additional responsibility this would place on an already burdensome office, and that the nature of the office could change from one that was essentially judicial, to one that was predominantly administrative.
A range of views were expressed about whether the Lord President should have statutory responsibilities for the disposal of court business. Many were cautious about this, commenting on the need to balance the responsibilities being proposed with the provision of adequate resources over which the Lord President had control. The current Lord President and the judges considered that it was of fundamental importance to resolve the questions of the future governance of the Scottish Court Service before considering in detail the nature of the proposed responsibilities that should fall on the Lord President, and what arrangements should be put in place to fulfil them. Others expressed similar views. However, overall it was accepted that, if formally recognised as head of the judiciary, the Lord President should have some responsibility for these matters.
The proposals to give the Lord President overall responsibility for judicial training and welfare were welcomed and there was also support for the proposal to transfer the responsibility for deployment from the Government to the Lord President and for giving the Lord President responsibility for dealing with issues of conduct. There was less support for the introduction of a formal conduct scheme.
There was little enthusiasm for any formal involvement of the Lord President in the strategic work of the Scottish Government, and a range of views expressed on how the judiciary should be involved in the management of the Scottish Court Service. There was a strong body of opinion that before detailed arrangements could be examined, the fundamental relationship between the judiciary, the Scottish Government and the Scottish Court Service had to be considered, and a structure put in place that would give the judiciary the resources to fulfil the duties required of it free from Government influence.
There was considerable support for the setting up of a Judges' Council, chaired by the Lord President. However, there was much less support for giving the Council a statutory basis and a non-statutory arrangement was considered preferable. Similarly, while there was general support for judges taking an active role in the management of the business, there was little support for a statutory provision for an administrative role for judges of the Court of Session to support the Lord President .
2. Judicial Appointments
The responses to this part of the consultation were varied. A transparent process for appointing judges was seen as being essential for public confidence in the system. There was a strong body of opinion that favoured giving the board a statutory remit, and for that remit to make clear that merit was the sole basis for appointment.
The precise balance of lay and legal members was seen as unnecessary by some, and a number of respondents considered that the judiciary should make up one-half of the board. There was no consensus about how many Court of Session judges should be amongst the membership. Some favoured an increase; others, including the present Board, were concerned that this would create an imbalance, and give one particular body disproportionate representation. The current Board felt that the reasons given in the consultation paper in support of the proposed increase failed to take account of the manner in which the Board conducted its work.
Unease was expressed about the proposal that Scottish Ministers should be able to issue guidance, with some respondents opposed to this in principle while others, including the current Board, recognised there may be matters on which guidance would be of assistance. The Board stressed that guidance should not contain any material that could be regarded as compromising its independence when assessing the suitability of candidates. Some, including the Board, felt that a statutory board would have a greater independence if it appointed its own staff.
Almost all who responded on whether the Board should recommend appointment to the Inner House of the Court of Session considered that the Board should not take on this function. Opinion was split about whether or not the Board should have a role in the appointment of temporary judges. The proposal to provide for a panel to advise on the suitability of candidates for appointment to the two most senior judicial offices was welcomed, although views on the membership of this panel varied.
3. Removal from office
The proposals for membership of the tribunal were broadly supported although there was some opposition to the presence of non-judicial members. There was support for the proposal that power should be given to the Lord President to make rules of procedure for the tribunal. There was a strong view that the proposals for suspension did not go far enough and a more general power to suspend was preferred. The Sheriffs' Association were strongly opposed to any change to the current arrangements for investigating the fitness of a sheriff set out in section 12 of the Sheriff Courts (Scotland) Act 1971. They considered that any such change would undermine the security of tenure of the office of sheriff and thus the independence of that office. This concern was not shared by all respondents, and there was a view that the section 12 procedure was in need of reform.
4. Conduct
The proposal for a comprehensive scheme to deal with complaints about judicial conduct was not universally welcomed. There was concern that the consultation had created an impression that there was a serious problem with such complaints, which was not the case. Some considered the present arrangements to be satisfactory but overall there was support for devising a more formal approach.
There was general agreement that no attempt should be made to define what might constitute inappropriate conduct and it was considered unhelpful to have singled out written work, especially when in that case the failure might be caused by circumstances other than wilful misconduct.
The Lord President was seen as the ultimate discipline authority. There was support for giving the Lord President power to delegate functions, but there were mixed views on the involvement of sheriffs principal. Some doubted whether a sheriff principal investigating one of his or her sheriffs would constitute an independent tribunal. There was also concern that giving sheriffs principal such a role would undermine the relationship of trust and mutual confidence that should exist between a sheriff principal and the sheriffs. The Lord President was seen as the appropriate authority to make rules to govern the conduct scheme, although there was a body of opinion that any regulation should allow flexibility in the handling of complaints.
While the need for some process to consider a grievance about the handling of a complaint was generally accepted, views on who should conduct that review varied. There was a strong body of opinion that the reviewing function should be within the judiciary, but this was balanced by those who favoured the involvement of an independent person.
There was almost unanimous support for providing a means for reviewing the merits of a complaint and the penalty and for giving the Lord President a power to suspend a judicial office holder, although some wished to see the circumstances when suspension could occur being limited.
5. Re-employing retired judges and sheriffs, and other issues
The proposed arrangement that would allow a sheriff principal to engage a retired sheriff in the same way that the Lord President is currently able to invite a retired judge to sit was almost unanimously welcomed.
There was agreement that there should be provision within legislation to allow the Lord Justice Clerk to fulfil the Lord President's duties in times of incapacity or vacancy. Such legislation is now in place. The Senior Judiciary (Vacancies and Incapacity) (Scotland) Act 2006 was passed by the Scottish Parliament on 15 June 2006 and came into force on 27 June 2006.
In relation to the proposal to place the tenure of temporary judges on a similar basis to that enjoyed by part-time sheriffs views were invited on whether appointment as a temporary judge should fall within the remit of the Judicial Appointments Board. Opinion was fairly evenly divided with some favouring the Board's having a role in the appointment of temporary judges, but this was balanced by strong contrary views favouring the current arrangements.
6. Eligibility for appointment of the office of judge of the Court of Session
There was no consensus on whether eligibility for appointment as a judge of the Court of Session should be extended to all practising solicitors. Extending eligibility was supported by the solicitor branch of the profession. There was also support from outside the profession where extending eligibility was seen as an important step to increasing greater diversity among the judiciary. However, there was also a strongly held view that experience of pleading before the superior courts, or service as a sheriff, was an essential qualification for appointment as a judge of the Court of Session. The Lord President, the judges, the Sheriffs Principal and the Faculty of Advocates all consider experience of pleading before the superior courts as an essential qualification. Some from outside the legal profession and the judiciary questioned how a lawyer with no experience of appearing before the superior courts could be qualified to be a judge in those courts. However there was some acceptance that there was an argument for extending eligibility to solicitors who have extended rights of audience in either the Court of Session or the High Court.