Judicial Conduct

155. As previously stated, section 2 gives the Lord President responsibility for establishing and operating a conduct scheme for the judiciary. In his evidence the Lord President confirmed that the Judicial Council is presently working on a “Code of Judicial Guidance” but advised “it is not a penal code of misconduct, as it were. It does not prescribe what judges must not do; it encourages them to or suggests that they do certain things.”⁹³

156. Proposals for a formal conduct scheme and what it should cover were first consulted on in Strengthening Judicial Independence in a Modern Scotland. The White Paper that followed, disclosed that the responses did not welcome the proposals wholeheartedly but that “taken broadly, however, there was support for devising a more formal approach.”⁹⁴

157. In both its written and oral evidence to the Committee, Victim Support Scotland stated its support for an enforceable code of conduct for judges and sheriffs to be overseen by the Lord President and setting out clearly what is expected of judicial office holders. Victim Support Scotland’s view was that an enforceable code of conduct would clarify the position for office holders themselves and enhance public accountability. A Code would be more prescriptive on sanctions for breach and would enable the public to understand what is expected of those who hold judicial office and provide greater public accountability.⁹⁵

158. As part of the Lord President’s new responsibilities for the conduct of the judiciary, section 26 provides that the Lord President may make rules for the investigation and determination of issues of judicial conduct and for reviews of such determinations. Some matters that might be covered by the rules are listed in section 2(2), subsection 3 provides that such rules “are to be published in such a matter as the Lord President may determine.”

159. The Bill therefore provides the framework for dealing with matters of judicial conduct but it is for the Lord President to determine the detail in rules and how such rules are to be published. The Bill’s Policy Memorandum anticipates “that the required standards will be determined by the judiciary and set down in a code of conduct or judicial ethics under the authority of the Lord President.”⁹⁶

160. In its evidence, the Law Society said that section 26 should place a requirement on the Lord President to make rules rather than simply stating that he “may” make rules, as the public and the judiciary have a right to know the procedures that will apply to them.

161. What is clear is that the Lord President will have responsibility for putting in place a system of conduct and for dealing with complaints about the judiciary. As a further step, sections 28 to 31 propose the establishment of a Judicial Complaints Reviewer to review the handling of an investigation into judicial conduct when requested by either the complainant or the judicial office holder.

162. The role of the Reviewer is restricted to considering the procedure followed and will not be to consider the merits of a particular case. The policy memorandum states that “this proposal has been carried out against the background of public sector reform and the principles of streamlining bureaucracy and simplifying the public sector delivery landscape. The involvement of the Scottish Public Services Ombudsman had previously been considered and rejected as this did not seem to be the correct approach to reviewing the application of a disciplinary process by the senior judiciary.”⁹⁷

Dealing with Complaints about the Judiciary - Current Practice

163. At present, there are no statutory provisions for dealing with complaints about judicial conduct other than in the most serious cases where a question of fitness for office arises. The Bill’s policy memorandum states “the absence of a process for dealing the complaints that are made may, on occasion, undermine public confidence in the judiciary.”⁹⁸ Presently, complaints about judicial conduct can be submitted to the Scottish Government, the Lord President or a Sheriff. They are dealt with as is seen fit and no powers of sanction exist for any less serious but significant conduct that would attract disciplinary action, short of dismissal.

164. According to the financial memorandum, there are around 180 complaints made each year about the Scottish Judiciary, the vast majority relate to sheriffs and a significant proportion of complaints relate to sentencing and other judicial decisions.

165. The proposals in the Bill to create a formal scheme would bring Scotland into line with other jurisdictions such as Canada and New Zealand who have long-standing schemes and England, Wales and Northern Ireland where schemes have been introduced more recently.⁹⁹

Judicial Conduct and Complaints about the Judiciary – Other Jurisdictions¹⁰⁰

166. In England and Wales, the Office of Judicial Complaints (OJC) supports the Lord Chancellor and the Lord Chief Justice with their joint responsibility for the system of judicial complaints and discipline in relation to the judiciary, coroners, tribunal office holders and magistrates. The OJC has 18 staff and in its first year of operation was allocated a budget of around £1.2m. Last year it dealt with 1674complaints. After consideration by the OJC, the Judicial Appointments and Conduct Ombudsman¹⁰¹ will consider individual complaints from a member of the public or a judge who is unhappy with some aspect of the handling of their case. During 2006-07, the Ombudsman received 304 new cases.

167. In Northern Ireland, the responsibility for dealing with complaints lies with the Lord Chief Justice. Minor complaints are dealt with by a “complaints officer” and for more serious complaints a Complaints Tribunal will be convened. Any review is conducted by the Lord Chief Justice. Approximately 35 complaints were received during the first year of operation.

168. In Canada, complaints about a judge’s conduct (but not a judicial decision) are made to the Canadian Judicial Council. The Council has a variety of options, from asking the judge to respond to the complaint, to holding a full inquiry into the matter. In very serious cases, the Council can recommend to Parliament that a judge be removed from office. In New Zealand, a Judicial Conduct Commissioner¹⁰² is responsible for receiving and assessing complaints about the conduct of the judiciary. Once the Commissioner has conducted a preliminary examination of the complaint, he can dismiss the complaint, refer the complaint to the Head of Bench or recommend that the Attorney-General appoint a Judicial Conduct Panel to enquire into the matter.

169. The system in place in England and Wales, given the volume of complaints dealt with, is supported by a significant staff and budgetary resource. The English system offers greater independence from the judiciary and government than the Northern Irish, New Zealand or Canadian models but the volume of complaints expected in Scotland is likely to be more comparable to that in Northern Ireland or New Zealand.

Volume of Complaints Expected

170. The financial memorandum anticipates that the number of complaints expected is around 182 annually. The experience in England and Wales has been that the existence of a formal complaints system resulted in a significant increase in the number of complaints received.¹⁰³ Whilst there is no direct comparison, the existence of a formal complaints process is estimated as increasing the number of complaints that might be received in Scotland to around 400, of which more than half may be sifted out as relating to a sentence or judgement or having no substance.

171. In England and Wales the Judicial Appointments and Conduct Ombudsman – equivalent to the Bill’s proposed Judicial Complaints Reviewer – received 27% of the original complaints to review. Using this percentage, it is estimated that Scotland’s proposed Judicial Complaints Reviewer might consider around 50cases a year. On this basis, the costs of the Judicial Complaints Reviewer are estimated to be around £24,000 based on 96 days work a year. It is not intended that the Judicial Complaints Reviewer will have separate staff.

The Judicial Complaints Reviewer

172. Perhaps not surprisingly, the evidence received by the Committee from the judiciary was not wholly supportive of formalising the procedure for dealing with complaints. In his evidence, the Lord President said—

“Decisions are open to legal challenge on procedure anyway. If, for example, a judge disputed a decision made by the Lord President, he or she would be in a position to challenge it in the Court of Session by way of judicial review if it was contended that the decision was procedurally inept. The same would be true, I think, of a complainant: they would be legally entitled to challenge the matter. It might be a difficult course to follow, but it would be open for a person to do that.”¹⁰⁴

173. On the proposal to have a Judicial Complaints Reviewer, the Lord President stated—

“It is unnecessary. It is a question of confidence and trust. One can reasonably suppose that we will be able to cope with matters adequately if they are dealt with in accordance with the rules that I envisage laying down in relation to any structure, or, indeed, if no rules as such are laid down in legislation or subordinate legislation but one deals with them as they are dealt with at the moment.”¹⁰⁵

174. Lord Osborne said that there was some ignorance or uncertainty about how to go about making a complaint and to whom a complaint should be made and that he was not profoundly opposed to the provisions. He went on to say however that the Members of the Court of Session regarded the Judicial Complaints Reviewer as “unnecessary and likely to generate significant public expenditure. It is a sorry day if one cannot trust the Lord President to operate complaints procedures correctly.”¹⁰⁶

175. This view was shared by the Faculty and the Sheriffs’ Association who said that although the number of complaints might increase, the number would still be very small “and the creation of an elaborate system to deal with such a small number might not be cost effective.”¹⁰⁷

176. On the proposed system, Lord McCluskey said “Of course, you can have such a system, but you will pay the price in bureaucracy, time wasting and giving people opportunities to mock the judicial system.”¹⁰⁸ In relation to the proposed Judicial Complaints Reviewer he commented that the situation was similar to that of ombudsmen in general and that in his view “it tends to be the case that they are sitting in judgment on people who are much better qualified that they are. I am not happy with that.”¹⁰⁹

177. On the proposal for a Judicial Complaints Reviewer, George Way for the Law Society, said—

“The Law Society has seen that the ombudsman who looked into the way in which we regulated our complaints did not meet the public’s needs. That system is now being swept away and replaced by an elaborate and expensive commission…The judiciary has to be careful about how far it allows the complaints system to proliferate and elongate. There has to be an end to the process. If there were opposition to a reviewer, we do not think that the objective of bringing complaints to an end would be achieved. It is desirable to have an end, so perhaps we should trust the Lord President in that matter.”¹¹⁰

178. Victim Support Scotland said that few complaints have been made about the judiciary but people do not know how to complain. In its view—

“there needs to be a vehicle to enable people to make complaints and other comments and to give feedback. That is an expectation in today’s business world, but it is not readily accessible in relation to the judiciary.”¹¹¹

179. Victim Support Scotland gave its support to the proposal for a Judicial Complaints Reviewer and said “Even if the complaints reviewer had no teeth, it would be good for the public to see that their comments had been acknowledged and accepted.”¹¹²

180. The Cabinet Secretary was asked why it is not intended to make the outcome of complaints public. In response he said—

“the last thing that we want to do is to provide an opportunity for holders of judicial office to be maligned and disparaged, and for complaints about them to be made public, without providing them with any protection…there could be an impact on civil or criminal appeals and other people could be dragged in. The issue can be reviewed but I am not yet persuaded that it would be appropriate to publish evidence of judicial misconduct.”¹¹³

181. When questioned about the need for a judicial complaints reviewer at all, the Cabinet Secretary said—

“In a constitutional arrangement that respects the principle of judicial independence, managing the conduct of judges is a function that can be undertaken only by the judiciary. The Bill sets out a framework of powers, but leaves it to the Lord President to determine the rules that will be published. However the fact that the Bill provides for the appointment of a judicial complaints reviewer seems to offer the general public some satisfaction that such matters will be dealt with. That proposal is beneficial and will protect us against the accusation that the system is simply about judges reviewing themselves to protect themselves.”¹¹⁴

182. The Committee is of the view that it is imperative that there is a formal complaints process. Such a process should be transparent and well publicised and should clearly differentiate between complaints made about conduct and behaviour and those made about a judicial decision itself. The Committee, by majority,¹¹⁵ agrees that in order to ensure public confidence and accountability, it is necessary to have a system for reviewing how a complaint has been handled. The Committee, by majority, agrees with the Bill’s proposal for a Judicial Complaints Reviewer.

Removal of Judges and Sheriffs

183. Sections 33 to 38 deal with the removal of judges and sheriffs. Section 33 provides that the First Minister must set up a tribunal to investigate and report on whether a person is unfit to hold judicial office by reason of inability, neglect of duty or misbehaviour where requested to do so by the Lord President. Section 34 provides for suspension of a judge who is being investigated by a tribunal. Sections 35 and 36 make further provision about a tribunal. Section 37 details the different arrangements for removing a temporary judge from office and section 38 makes provision for the removal from shrieval office.

184. Section 33 reflects the present position as set out in the Scotland Act 1998 which allows the First Minister, in relation to judges of the Court of Session, to take steps to constitute a tribunal. The Lord President advised “as a matter of constitutional law, I do not have any serious difficulty with that state of affairs.”¹¹⁶

185. Both the Faculty of Advocates and the Law Society of Scotland agreed that the involvement of the First Minister was constitutionally appropriate and both were content with the proposed composition of the tribunal (two judicial members, a solicitor, an advocate and a lay member).¹¹⁷

186. The Sheriffs’ Association said however that it continued to be opposed to the inclusion of a lay person in the tribunal and that it had concerns about section 38 saying “the proposed amendment to section 12 of the 1971 Act reduces the protection afforded to sheriffs and breaches previous Ministerial assurance at the time of devolution.”¹¹⁸

187. In response to the Sheriffs’ Association’s concern, the Cabinet Secretary said—

“What has been proposed is perfectly reasonable. We are ensuring that such matters will be dealt with to some extent by the Lord President as opposed to by ministers. There is no suggestion that anyone in that office will seek to interfere unduly. It is a matter of balance. I do not see what the holders of shrieval office have to fear.”¹¹⁹

188. The Committee notes the apprehensions of the Sheriffs’ Association but is of the view that the Bill provides appropriate safeguards in relation to the removal of sheriffs.

The Courts

189. Part 3 of the Bill (sections 40 to 55) make certain provisions for the courts. Scottish Ministers will be required to consult the Lord President before laying an order altering the number of judges in the Inner and Outer Houses and there is now provision for the quorum of the Inner House of the Court of Session and the Lands Valuations Appeal Court to be modified.

190. Section 44 re-states the responsibilities of sheriffs principal setting out how this relates to the Lord President’s overarching responsibility and direction making power.

191. In general, these provisions were welcomed. Specifically the Scottish Justices Association welcomed the responsibilities given to Sheriffs Principal in Section 55 with regard to the provision and management of JP courts.

THE SCOTTISH COURT SERVICE

192. Part 4 of the Bill establishes a body corporate known as the Scottish Court Service. The Explanatory Notes say that the functions of the SCS are “to provide the administrative support for the scottish courts, the judiciary of those courts and certain other specified persons.” In contrast to the existing SCS which is an Executive Agency of the Scottish Government under ministerial control, the new SCS will be a separate legal entity from Government. It will be both a body corporate, consisting of seven judicial members and six non-judicial members chaired by the Lord President, and an office in the Scottish Administration.

193. The SCS will no longer come under the direct authority of the Cabinet Secretary for Justice but will operate within a set of principles agreed with Scottish Ministers. The cost of the running the SCS will be covered by a separate vote in the annual Budget Act. The Committee notes that responsibility for matters to with legal aid and court fees will remain with the Government. The Cabinet Secretary explained this saying, these are ”matters of public policy that change with time, rather than matters relating to fundamental independence and the separation of powers, which are the bedrock on which a democracy is built.”¹²⁰

194. As noted in the policy memorandum, in order to establish the SCS as an office within the Scottish Administration, it will be necessary for an order to be passed at Westminster to amend the Scotland Act 1998; the effect of this will be to enable the SCS to employ civil servants directly.

195. As referred to earlier in this report, a review of the structure and governance of the Scottish Court Service (the Osler Review) was undertaken during 2005. The report published in early 2006, made recommendations relating to the future governance of the supreme and sheriff courts in Scotland and the future relationship between the SCS and the judiciary. It concluded that there would be advantages in creating a unified judiciary with its own management structure.

196. Following that review, the first steps were taken to involve the judiciary in the strategic governance of the SCS with the establishment of a strategic board to advise the chief executive. Thereafter, responses to the consultation on Strengthening Judicial Independence in a Modern Scotland suggested that it would be difficult to put the Lord President in the position of having overall responsibility for the efficient disposal of business in all courts without giving him authority over the administrative support for those courts. The next consultation on the draft bill, contained in the White Paper, suggested a way forward and discussion on the detail followed, culminating in the current Bill’s proposals.

197. In his evidence, Alastair Sim for the SCS, said that the recent greater involvement of judicial representatives in the SCS has helped the SCS “to take decisions that are better by being informed by the judicial perspective and which the judiciary understands better because of the judicial representatives’ participation in the decision making.”¹²¹

198. The Committee understands the benefits of judicial involvement in the running of the courts administration, however there were concerns expressed by the PCS that the major changes already underway in the Court Service should be allowed to bed in before moving to a unified court service under the jurisdiction of the judiciary.

199. Ken Brown, PCS, said—

“We acknowledge that a unified judiciary will be good for the SCS and we are pleased to see it happening. However, there is an awful lot going on and we are not entirely sure that we can cope at the coalface. I am sure that things are okay at board level, but we feel that we might be taking on too much with all the changes that are going on in the courts.”¹²²

200. The Committee notes the report of the Osler Review which states “A move to a unified, structured judiciary is in itself a major and experimental step. If it is established consideration should be given again to its relationship to the SCS, possibly after three years.”¹²³

201. It is clear that there is support within the judiciary and in the SCS management for proceeding with the changes to the SCS. In this regard, and more widely, the Bill confers on the Lord President many new responsibilities, not least of which is the chair of the new SCS. In general therefore there will be an increase in the judiciary’s involvement in administrative matters.

202. In his evidence to the Committee, the Lord President said that the model for the new SCS had to some extent been the Irish system and that—

“The Irish experience suggests that the work with the Scottish Court Service will take maybe two days a month. The amount is not expected to be large, although there will be other, wider, responsibilities that will take more time, such as that on unification of the court structure, which will require me to co-ordinate matters with the sheriffs principal.”¹²⁴

203. Lord Osborne said that judges of the Court of Session are happy with the governing body of the SCS as proposed in the Bill and that judges did not expect that the proposal to impose an unnecessary administrative burden on judges.¹²⁵

204. In his evidence however, Lord McCluskey said that the burden that was being put on the Lord President will require “large numbers of civil servants to do his bidding, and I do not approve of that.”¹²⁶

205. He went on to say that if judges “are going to be given administrative burdens as well – the Bill is full of such burdens – I am afraid that that will make people disenchanted. Already we see that sometimes the best people do not apply to go on the bench.”¹²⁷

206. The Cabinet Secretary confirmed his view that it was appropriate for the Lord President to chair the SCS board and for it to fall within his (the Lord President’s) domain rather than that of the Government. He went on to say that the formal role as chair of the board would not detract from the Lord President’s judicial functions, “Obviously, the Lord President can delegate some of his responsibilities, and he will have an enhanced private office to support him.”¹²⁸

207. The Committee notes from the Bill’s financial memorandum¹²⁹ and the response of the Scottish Government Bill Team to the Finance Committee, that the Lord President will, in due course, determine the shape and size of the additional support that he requires. The Committee also notes that allowance has been made for temporary judicial cover for judges and sheriffs who are engaged on duties supporting the Lord President with his new responsibilities. The equivalent of the annual cost of 200 sitting days has been allowed for. This is a not inconsiderable amount of judicial sitting time which could be surrendered to administrative work.

208. Professor Alan Paterson observed—

“Given that in terms of the Bill the Judiciary will be more in charge of the running of the courts than their English counterparts it is interesting that composition of the bodies charged with this function in the two countries is as it is. I understand that in England a new Board of eleven members will be chaired by an independent non-executive lay chair with three judges, four executive directors, a representative of the Ministry of Justice and two other non-Executive directors. In Scotland, the Bill proposes a body (SCS) chaired by the Lord President with six judicial members, two practicing lawyers, a chief executive and three lay members. I can certainly see that it might be argued that the English approach is more balanced than that in the Bill”¹³⁰

209. The Committee reiterates its concerns expressed in paragraph 52 about the potential administrative burden falling to judicial post-holders and particularly the Lord President. As a consequence of the Committee’s reservations, at this stage, removal of the Scottish Court Service from the direct authority of Scottish Ministers is not unanimously supported by the Committee.

Accountability and Governance

210. Schedule 3 of the Bill sets out further detail about the SCS, the membership and appointment processes. There are seven judicial members; the Lord President, the Lord Justice Clerk, a judge of the Court of Session, a sheriff principal and two sheriffs. The six non-judicial members are an advocate, a solicitor, the Chief Executive of the SCS and three other individuals who are not part of the legal system.

211. Although there is no member specifically there to represent courts users, Eleanor Emberson, Chief Executive of the Scottish Court Service, said “the best way to represent court users – customers of the court service – is for the board to have three independent members who are not part of the legal system and who can, in effect, be the voice of the people of Scotland.”¹³¹

212. In its written submission, the Part Time Sheriffs’ Association called for representation on then board of SCS saying—

“At a basic level, it does seem remiss to have no representation on behalf of the eighty part-time sheriffs in Scotland on the Board of the SCS, when those Sheriffs have so much experience in the administration of civil and criminal justice throughout Scotland.”

213. In both written and oral evidence, the Law Society of Scotland said that it was concerned about the position of the chief executive—

“We believe that he has to be in or out: either he is the chief executive, in which case he should not be a member of the board – he should not be a voting member – or he is a member of the board, in which case he should not be a member of the SCS. His appointment should be separate. That issue needs to be addressed with regard to good corporate governance. We do not see the solution, just now she is the servant of twa masters.”¹³²

214. This issue was considered by Audit Scotland who said—

“practice in the public sector has varied and to some extent may be influenced by the functions of that body. Whilst it is ultimately a policy matter, our view would be that on balance, for bodies where the role of the chief executive very much accords with the purpose of the body e.g. to run the court service, then it is likely to be more conducive to effective running and cohesion of the organisation if the chief executive is a full member of the board with full voting rights.”¹³³

215. The Lord President was asked whether he saw his involvement in the strategic management of the SCS as drawing the Lord President more directly into the work of government, to which he responded—

“Government has various aspects. I regard the judiciary as an arm of government, in a sense. The Bill might seem to draw us closer towards executive government than has been the case hitherto, but putting a judicial majority on the Scottish Court Service moves the system back more closely to the judicial arm of government rather than with the executive arm of government.”¹³⁴

216. In relation to accountability he said “the matter may arise specifically in relation to my position as the head, or rather the chair, of the corporate body that is to be the Scottish Court Service. I do not see any responsibility to Parliament under the Bill other than in that regard.”¹³⁵ He went on to say—

“under the Scotland Act 1998, the Scottish Parliament does not have an existing power to compel any judge to appear before it. To secure such a power, the Scotland Act 1998 would require to be amended or some other Westminster-based mechanism would have to be used to derogate from the existing provision…I do not think that any change is needed or that making a change would be appropriate…I could assist by being invited to attend it from time to time to explain the Scottish Court Service’s performance. Routine matters are for the chief executive to explain.”¹³⁶

217. This position was confirmed by Eleanor Emberson, who said—

“I am the accountable officer for the Scottish Court Service at the moment and I would have that role under the new arrangements as well. I would expect to be the person to answer any questions that this committee or other committees might want to ask about the business of the service.”¹³⁷

218. Although Eleanor Emberson was not of the view that the Lord President is the person who is ultimately answerable for the proper use of public money or the proper handling of business in the service, she did agree that the Lord President would be likely to appear before the committee if invited to do so—

“The Parliament would be able to invite the Lord President to appear before it. In such a dire situation, it is hard to believe that he would not accept that invitation, but if he chose not to do so, parliamentarians could summon non-judicial members of the corporate body and the principal accountable officer.”¹³⁸

219. In his written evidence Professor Alan Paterson said—

“In England and Wales it seems to be accepted that it is appropriate for the senior judiciary to appear before parliamentary committees following the recent constitutional changes, to respond to questions relating to matters for which they are responsible (but not in relation to individual cases). I would consider the same to hold true in Scotland. I note the discussions about the compellability of judges to appear before the Parliament and the Lord President in particular. I suspect that the question is to a certain extent academic. Parliament may well in the future invite the Lord President to appear before it in relation to non-routine matters to do with the SCS’s performance, and he has indicated that he will accept some such invitations. If a situation arose where there was widespread public and parliamentary concern at some aspect of the operation of the courts and the SCS, I would think it unlikely that the Lord President would refuse a reasonable request to attend in such circumstances”¹³⁹

220. Professor Sir David Edward was asked about the Lord President having a degree of accountability to the Parliament as a consequence of his additional administrative responsibilities and replied—

“We need to be extremely careful about how much we load on to the office of Lord President…the Parliament and the Government should trust the Lord President to do the job to which he has been appointed. Excessive pressures in the name of accountability might make it extremely difficult to perform that job well in our Scottish context.”¹⁴⁰

221. In response to the question of accountability, the Cabinet Secretary confirmed that—

“The SCS board will be accountable in a variety of ways. The chief executive is the accountable officer and is responsible for the SCS’s proper and efficient use of resources – the chief executive is a compellable witness…If there were serious problems about apparent failure in the SCS, the Scottish Ministers could make an order that would be subject to affirmative procedure, thereby ensuring parliamentary accountability.”¹⁴¹

222. The Cabinet Secretary went on to say that any move to make the Lord President compellable “would lead us down the route of interfering with the concept behind the Bill – the independence of the judiciary.”¹⁴²

223. Having considered the evidence, the Committee is content that the chief executive should be a member of the board of the Scottish Court Service and is of the view that there is no strong reason to change the existing legislative provisions whereby the Lord President is not a compellable witness. In this regard, the Committee welcomes the willingness of the Lord President to assist the Parliament when invited to do so.

Default Power

224. The order that Scottish Ministers could make, referred to by the Cabinet Secretary, relates to the provision in section 66 giving Scottish Ministers a default power to take over the functions of the SCS in the event of serious failure.

225. The Committee was advised in correspondence from the Cabinet Secretary that it is not uncommon to make provision in legislation for what is to happen if things go wrong but that this is generally done by way of power of direction. A power of direction was not thought to sit well with the independence of the SCS, so a default power has been included.

226. In its report, the Subordinate Legislation Committee raised concerns about this section. The Subordinate Legislation Committee was concerned that this provision gives the Scottish Government power to take over the SCS indefinitely, that there is no mechanism for the order to be revoked once no longer required, nor any opportunity for Parliament to formally consider whether and for what time the order should remain in force and that this is not in keeping with the objective of the Bill which is to secure the independence of the Scottish Court Service.

227. We note the comments of the Cabinet Secretary that this power “would be used in only the most extreme circumstances.” Nevertheless, we seek further clarification of whether, in the circumstances where the Scottish Ministers did take over the running of the SCS, it would be likely to retain the functions permanently or whether it would transfer the functions to another statutory body independent of the Scottish Government.

228. The Committee is content that this power be included in the Bill but requests that the Scottish Government reviews the comments made by the Subordinate Legislation Committee and reverts to this Committee on all the issues raised.

issues raised by other committees

Subordinate Legislation Committee

229. During its consideration of the Bill’s delegated powers, the Subordinate Legislation Committee raised a number of issues with the Government and drew this Committee’s attention to its concerns. Its report is included at Annexe A.

Finance Committee

230. The Finance Committee agreed to adopt level one scrutiny in relation to this Bill and did not therefore take oral evidence or produce a report; however it did seek written evidence from relevant parties. Responses were received and considered from the Judicial Appointments Board, the Lord President’s Private Office and the Scottish Court Service. The Committee sought responses from the Scottish Government Bill Team on the points raised in the submissions and advised that it was content that the points raised had been addressed.¹⁴³ The relevant correspondence is included at Annexe B.

Conclusions

231. The Committee agrees to the general principles of the Bill, but in doing so draws its concerns to the Scottish Government about firstly the considerable administrative and organisational burdens to be placed on this and any future Lord President and secondly its reservations about moving direct authority for the Scottish Court Service away from Scottish Ministers; and notes that there was not unanimous support within the Committee for a Judicial Complaints Reviewer. Further, the Committee requests that the Scottish Government provide independent quantifiable evidence about the impact that the Bill’s proposals could have on judicial time, as the Committee is concerned that the impact could be to detract from the judicial role.

Annexe A: REPORTS FROM OTHER COMMITTEES

Subordinate Legislation Committee

Report on the Judiciary and Courts (Scotland) Bill at Stage 1

The Committee reports to the Parliament as follows—

Introduction

1. At its meetings on 26 February and 18 March 2008, the Subordinate Legislation Committee considered the delegated powers provisions in the Judiciary and Courts (Scotland) Bill at Stage 1. The Committee submits this report to the Justice Committee, as the lead committee for the Bill, under Rule 9.6.2 of Standing Orders.

2. The Scottish Government provided the Parliament with a memorandum on the delegated powers provisions in the Bill.¹⁴⁴

3. The Committee’s correspondence with the Scottish Government is reproduced in the Annexe.

Delegated Powers Provisions

4. The Committee considered each of the delegated powers provisions in the Bill. The Committee approves without further comment: sections 2(5)(h), 10(1)(g), 26(1), 35(3), 38, 40, 41, 42, 43, 47, 48, 54, 58(1)(h), 62(8)(a) and 62(9), 70, 71, 72, schedule 1 - paragraph 3(4), schedule 3 - paragraphs 3(2) and 19(1).

Section 66(2) – default power – power to the Scottish Ministers to carry out the functions of SCS

5. Section 66(2) confers a power on the Scottish Ministers to provide by order for the functions of the Scottish Court Service (SCS) to be carried out by them instead, in the event of a serious failure by the SCS to carry out its functions such that there is a significant risk to the efficient and effective functioning of the Scottish courts.

6. The Committee asked the Government to consider amending this power to place the Scottish Ministers under a duty to revoke such an order as soon as they are satisfied that SCS can perform its functions with a view to ensuring a return to the situation reflecting Parliament’s intention (i.e. that the administration of the courts should be carried out by the SCS rather than an agency of the Scottish Ministers).

7. The Scottish Government responded by stating that the outcome of the Scottish Ministers’ assumption of the SCS’s functions may not be the return of those functions to the SCS. It is possible that SCS’s failings may be so fundamental that the Scottish Ministers see the permanent assignment of its functions to the Scottish Ministers or ultimately further legislation to give the functions to another statutory body as the best way forward after the Scottish Ministers have used the default power.

8. The Committee acknowledge that this power is intended for exercise in an extreme situation and therefore that it is possible that SCS’s failings may be so fundamental that it may not be appropriate to return their functions to them. The Committee noted that the Scottish Ministers’ exercise of this power is subject to conditions: (a) that the SCS is failing to carry out is functions to such an extent that there is a significant risk to the efficient and effective functioning of the Scottish courts; or is carrying them out in such a way there is such a risk; and (b) that in order to avoid or mitigate that risk it is necessary that the functions be carried out instead by them.

9. The Committee noted that where these conditions apply, the order providing for the SCS’s functions to be carried out instead by the Scottish Ministers will be subject to a higher degree of Parliamentary scrutiny as, while such an order comes into force immediately, it ceases to have effect after 40 days unless approved by a resolution of the Parliament. However, if approved by the Parliament, such an order can remain in force indefinitely.

10. The Committee remains concerned that a power for the Scottish Government to take over the SCS’s functions indefinitely is not compatible with the Bill’s purpose and Parliament’s intention (assuming the Bill is passed) to establish the SCS as a body corporate operationally independent of the Scottish Ministers. In essence, the Committee’s concern is that the Bill provides no requirement or mechanism for termination of the order. As framed there is no duty for the order to be revoked, once it is no longer required. Further, there is no opportunity for Parliament to formally consider whether the order should remain in force once initial approval is granted.

11. The Committee considers that the Government should have further regard to amending this power to place the Scottish Ministers under a duty to revoke an order made under section 66(2) as soon as they are satisfied that SCS can perform its functions again. Whilst the Committee notes the Government’s response that it may not be appropriate to return the functions to SCS where its failings are fundamental, the Committee considers this to be a separate matter. In such circumstances the duty to return SCS’s functions to SCS (by revoking the order) would not apply if the Scottish Ministers were not satisfied that SCS could perform its functions again. The Committee considers that further consideration should be given to time-limiting or sunsetting any order as a mechanism for enabling Parliamentary scrutiny of the duration of the order. This would mean that if the Scottish Ministers required the power to perform SCS’s functions beyond the duration of the original time-limited order, they would require to make a further order. This mechanism would ensure that Scottish Ministers would have to make out their case for it before Parliament. The Committee draws these concerns to the attention of the lead committee and recommends to the lead committee that it press the Government to consider amending this power to place the Scottish Ministers under a duty to revoke an order made under section 66(2) as soon as they are satisfied that SCS can perform its functions and consider time limiting such orders.

12. The issue of what steps may be taken by the Scottish Ministers in the circumstances where the SCS’s failings are so fundamental that is not appropriate to return their functions to them is a policy matter. The Committee therefore draws this matter to the attention of the lead committee who may wish to ask the Government to explain whether the Scottish Ministers would be likely to retain SCS’s functions on a permanent basis or whether the transfer of these functions to another statutory body independent of the Scottish Government would be more likely.

13. The Committee also sought clarification from the Government whether it was intended that any revocation order be subject to the same Parliamentary procedure as the original order (i.e. that that the revocation of the original order would only be temporary unless approved by the Parliament within 40 days). This was the Committee’s understanding of the Parliamentary procedure applying to such a revocation order based upon reading sections 66(2) and 67(5) together with paragraph 11 of Schedule 1 to the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999.

14. The Government agreed with the Committee’s analysis of the procedure to apply to an order revoking an order made under section 66(2) and is considering whether it is appropriate for the revocation order to follow the procedure in section 67(5) of the Bill. The Committee recommends that the Government clarify this and will monitor any amendments made by the Government in this respect at Stage 2 when it will reconsider the matter.

15. The Committee consider that any action taken under the temporary use of the power should remain valid even if the order is not affirmed within 40 days. However, the Committee noted the statement in paragraph 69 of the Delegated Powers Memorandum which states that: “a procedure which requires an affirmative resolution by the Parliament if the Scottish Minister’s actions is [sic.] to be allowed to stand is appropriate.” The Committee therefore asked the Government to clarify what the effect would be of any action taken by the Scottish Ministers if not affirmed by the Parliament within 40 days.

16. The Government confirmed that it is its intention that any action taken under the temporary use of the power (even if the order is not affirmed by the Parliament within 40 days) will continue to have effect. The Committee noted that the Government is considering whether it wishes to amend section 66 to make it clear that action taken by the Scottish Ministers during a period between the order being made and the Parliament choosing not to affirm it remain valid. The Committee will monitor any amendments made by the Government in this respect at Stage 2 and reconsider the matter.

Schedule 3, paragraph 2(5) – power to alter the membership of the SCS

17. Paragraph 2(5) of schedule 3 enables the Scottish Ministers, with the consent of the Lord President, to modify the categories of judicial members and non-judicial members of the SCS subject to the restriction that the total number of non-judicial members must not exceed the total number of judicial members of the SCS. Whilst the exercise of this power is subject to the higher degree of Parliamentary scrutiny of affirmative procedure, the Committee was concerned that the use of this power did not become a regular occurrence to ensure that the SCS has reasonable periods of stability in the composition of its membership. The Committee therefore asked the Government to consider amending the provision to provide that it may only be exercised when the Scottish Ministers consider it necessary for the efficient and effective functioning of the Scottish Courts.

18. The Government responded that it does not consider such an amendment to be appropriate given that there may be other circumstances in which it may be appropriate to amend SCS’s membership. For example, future changes in the structure of the overall justice system may lead the Scottish Ministers and the Lord President to think that the membership of SCS should be revised. In addition, the Government explains that the Lord President may decide, in the light of experience, that the SCS corporate body is the wrong size to be an effective decision-taking body and may ask the Scottish Ministers to consider revising the membership of SCS.

19. The Committee agrees that the examples of circumstances which may necessitate a change in the composition of SCS are possible and reasonable and not directly related to “the efficient and effective functioning of the Scottish courts”. The Committee is therefore satisfied with the Government’s explanation as to why it is not appropriate to amend this power in this way. The Committee considers that the Scottish Ministers are likely to be discouraged from seeking to exercise this power to alter the membership of SCS too frequently on the basis that any such order would require to be approved by the Scottish Parliament. The Committee therefore considers that the response from the Government is satisfactory and that suitable safeguards are provided by the requirement for affirmative procedure.

Section 15(1) and (2) – guidance to the Judicial Appointments Boards for Scotland (JAB)

20. The functions of the Judicial Appointments Board (JAB) are to recommend individuals for appointment to judicial offices within the JAB’s remit to the Scottish Executive and to provide advice to members of the Scottish Executive in connection with such appointments. Section 15(1) and (2) provide that the Scottish Ministers and the Lord President may both issue guidance to the JAB as to the procedures to be followed by it in the carrying out of its functions. Subsections (5) and (6) provide that (i) before the Scottish Ministers issue any guidance they must consult with the Lord President and the JAB and (ii) before the Lord President issues any such guidance he or she must consult the JAB and obtain the agreement of the Scottish Ministers.

21. The Delegated Powers Memorandum did not refer to this power or provide any justification for it. The Committee therefore asked the Government a number of questions in relation to this power and its potential use. Whilst section 9(3) of the Bill provides that “In carrying out its functions, the Board is not to be subject to the direction or control of any member of the Scottish Executive or any other person”, the Committee was concerned about the potential impact of this power to issue guidance on the independence of the JAB (which requires to have regard to that guidance in the exercise of its functions).

22. The Committee asked the Government to explain why, where the substance of the guidance to be issued by the Scottish Ministers to the JAB under section 15(1) is to relate to procedures, it is appropriate that this take the form of guidance rather than regulations. The Committee suggested that regulations etc. (in the form of a statutory instrument) would provide greater transparency than guidance.

23. The Government responded that: “It would be entirely inappropriate for the Scottish Ministers to seek to direct the Board either through taking regulating making [sic.] powers or in any other way. Minister [sic.] have, however, taken the power at section 15 to issue guidance to the Board on procedural matters.”

24. The Committee sought clarification from the Government as to what form of guidance the Scottish Ministers proposed to issue to the JAB in relation to the procedures to be followed by the JAB in the carrying out of its functions. The Government has responded that it has no current plans to issue guidance to the JAB and that “it is difficult at this stage to be precise about what issues might be covered”. The example of guidance upon changes to employment or equality legislation impacting upon the JAB’s work is provided. The Government emphasised that it would be for the JAB to decide whether, and if so how, its practices and procedures needed to be adapted to accommodate any new circumstances. The Government has also said that it is possible that the JAB may wish to seek guidance from the Scottish Ministers or the Lord President.

25. The Government has also responded that whilst it is appropriate for the Lord President, in his new role as head of the Scottish judiciary, to be given power to issue guidance to the JAB, the Bill recognises that the Scottish Ministers have ultimate responsibility for judicial appointments in Scotland. The Government asserts that this provision will not impact on judicial independence as, in issuing guidance to the JAB, the Lord President will not be acting in a judicial capacity.

26. The Government has not explained why it considers that it is appropriate to issue guidance to the JAB in the form of “soft law” guidance relating to procedure to be followed by the JAB rather than in the form of regulations. The Committee concludes that guidance to the JAB as to the procedures to be followed by it in carrying out its functions, which the JAB must “have regard to” in carrying out its functions, does not amount to “direction or control” of the JAB. Such guidance relating to the procedures to be followed by the JAB in carrying out its functions could be more easily departed from by the JAB than if procedural requirements were set out in the form of regulations which the JAB would have to comply with. Guidance would therefore be less likely than regulations. The Bill also provides that the Scottish Ministers must publish any such guidance and lay a copy of this guidance before the Parliament which should ensure a degree of transparency and accountability as to its content and function.

27. The Government did not provide any real clarification of the kind of guidance it intends to issue to the JAB although it confirmed that there are no current plans to issue guidance to the JAB. The Government’s response emphasises that the JAB will be classified as an advisory non-departmental public body which is operationally independent of the Scottish Ministers and this independence is protected in the Bill which provides that the JAB is not to be subject to the direction or control of any member of the Scottish Executive or any other person. The Bill also prescribes that selection by the JAB for recommendation of a person for judicial office is to be “solely on merit”. The Committee accepted that this fundamental requirement cannot be affected by guidance. Accordingly, the Committee considers this power acceptable in principle based on the Government’s response emphasising the intended independence of the JAB and the safeguards built into the Bill itself.

28. The Committee also asked the Government to explain in relation to the guidance to be issued by the Lord President to the JAB––

(a) if the purpose of section 15(5) and (6) is to avoid duplication between the guidance to be issued by the Scottish Ministers and the Lord President, why this is this not referred to in the provisions; and

(b) why there is a requirement for the Lord President to obtain the Scottish Ministers’ agreement before issuing any guidance to the JAB, in light of the independence of the judiciary.

29. In its response, the Scottish Government states that legislative provision is drafted to have legal effect and does not necessarily explain its purpose.

30. The Committee agrees with the Government’s general contention that legislative provision is drafted to have legal effect and does not necessarily explain its purpose. However, if the purpose of section 15(5) and (6), in requiring Scottish Ministers to consult the Lord President before issuing any guidance to the JAB and the Lord President to seek the approval of the Scottish Ministers before issuing any guidance to the JAB, is to safeguard against duplicate or conflicting guidance, then this effect could be transparent by providing distinct functions to each body of guidance on the face of the Bill.

31. Alternatively, the criteria upon which the Scottish Ministers will approve or disapprove guidance to be issued by the Lord President to the JAB could be referred to on the face of the Bill and one criterion could be to avoid duplication between any guidance issued by the Scottish Ministers and the Lord President to the JAB. This would have provided transparency as to the way in which Scottish Ministers are to exercise their discretion to approve or disapprove any guidance to by issued by the Lord President to the JAB. However, the Bill is silent as to the criteria which will be applied by the Scottish Ministers in deciding whether to approve proposed guidance to be issued by the Lord President to the JAB. In the circumstances, the only limitation upon the Scottish Ministers’ exercise of their discretion in deciding whether to approve or disapprove guidance which the Lord President proposes to issue to the JAB is that implied by law to act reasonably.

32. The Committee acknowledges that the Government’s justification for the Scottish Ministers’ power to veto any proposed guidance by the Lord President to the JAB is its ultimate responsibility for judicial appointments in Scotland. Section 9(2) of the Bill provides that the functions of the JAB are: (1) to recommend to members of the Scottish executive individuals for appointment to judicial offices within the Board’s remit; and (2) to provide advice to members of the Scottish Executive in connection with these appointments. Accordingly, the Committee considers it appropriate that the Scottish Ministers have the right to vet any guidance which the Lord President proposes to issue to the JAB, which is responsible for recommending people for judicial appointment to the JAB. It also acknowledges that the Lord President, in preparing guidance to be issued to the JAB, is not acting in a judicial capacity.

33. In the circumstances, the Committee has no specific reservations at this stage as to the power conferred upon the Scottish Ministers and the Lord President to issue guidance to the JAB. However, the Committee draws this matter to the lead committee for further consideration as various questions of interest arise as to the limitations of guidance and what practical application is intended. The Committee will reconsider these provisions at Stage 2.

ANNEX

Correspondence between the Subordinate Legislation Committee and the Scottish Government following its meeting of 27 February 2008

1. On 26 February 2008, the Committee asked the Scottish Government for further explanation of a number of matters. These are considered in turn.

Section 66 (2)-default power-power to the Scottish Ministers to carry out the functions of the SCS

1. The Committee asked the Scottish Government––

• to consider amending the power to place the Scottish Ministers under a duty to revoke such an order as soon as they are satisfied that SCS can perform its functions;
• to clarify whether it is intended that a revocation order revoking an order made under section 66(2) is to have temporary effect unless approved by the Parliament (which appears to be the effect of the provision on reading it with paragraph 11 of Schedule 1 to the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (SI 1999/1379)); and
• to clarify what it considers to be the effect of any action taken by the Scottish Ministers if not affirmed by the Parliament within 40 days.

The Scottish Government responds as follows––

2. The ultimate outcome of Ministers’ assumption of the SCS’s functions may not be a return of these functions to the SCS. It is theoretically possible that the SCS’s failings may be so fundamental that Ministers and Parliament see the abolition of the SCS and the permanent assignment of its functions to Ministers or legislation to give the functions to another statutory entity as the best way forward after Ministers have used the default power. The Scottish Government therefore considers that it would not be appropriate to amend the power in the way suggested.

3. The Scottish Government agrees with the Committee’s analysis and is considering whether it is appropriate for the revocation order to follow the procedure in section 67(5) of the Bill.

4. The Scottish Government is considering whether section 66 may need to be amended to make it clear that actions taken by the Scottish Ministers during a period between the Order being made and Parliament choosing not to affirm it remain valid. For instance, contracts for supplying the courts with stationery and facilities entered into by the Scottish Ministers during this period would have to remain valid after Parliament had chosen not to affirm the order.

Schedule 3-paragraph 2 (5)-power to alter the membership of the SCS

5. The Committee asked the Scottish Government to––

• consider amending this provision to provide that, in addition to the requirement to obtain the Lord President’s consent, the power may only be exercised when the Scottish Ministers consider it necessary for the efficient and effective functioning of the Scottish courts.

The Scottish Government responds as follows––

6. The Scottish Government considers that, as there are circumstances which do not directly relate to “the efficient and effective functioning of the Scottish courts” in which it may be appropriate to revisit the SCS’s membership, it would not be appropriate to amend this provision in this way. For instance future changes in the structure of the overall justice system may lead Ministers and the Lord President to think that the membership should be revised, or the Lord President may decide in the light of experience that the SCS corporate body is of the wrong size to be an effective decision-taking body and may wish to invite Ministers to revisit the membership.

Section 15(1) and (2) – guidance to the Judicial Appointments Board for Scotland (JAB)

7. The Committee asked the Scottish Government––

• in the circumstances where the substance of the guidance to be issued by the Scottish Ministers to the JAB under section 15(1) is to relate to procedures, to justify why it is appropriate that this take the form of guidance rather than regulations, for example;
• in light of the intention that JAB is not to be subject to the direction and control of the Scottish Ministers, to clarify what form of guidance (to be followed by the JAB in carrying out its functions) the Scottish Ministers intends to issue to JAB under section 15(1);
• if the purpose of section 15(5) and (6) is to avoid duplication between the guidance to be issued by the Scottish Ministers and the Lord President, to explain why is this not referred to in these provisions; and
• to explain why is there a requirement in section 15(6)(b) for the Lord President to obtain the Scottish Ministers’ agreement before issuing any guidance to the JAB in light of the independence of the judiciary.

The Scottish Government responds as follows––

8. Judicial independence is a matter of great constitutional importance. It is of fundamental importance to the protection of individual rights in a modern Scotland. One of the avenues for securing the independence of individual judges relates to the method by which judges are selected.

9. JAB was set up in 2002 in order to maintain and strengthen judicial independence. It takes responsibility for selecting candidates for judicial office out of the hands of the Ministers and makes the appointments process clearer and more accountable. When it is placed on a statutory footing JAB will be classified as an advisory NDPB operationally independent of the Scottish Ministers. To further protect this independence and put matters beyond doubt the Bill provides that the Board is not to be subject to the direction or control of any member of the Scottish Executive or any other person. It would be entirely inappropriate for the Scottish Ministers to seek to direct the Board either through taking regulating making powers or in any other way. Ministers have, however, taken the power at section 15 to issue guidance to the Board on procedural matters. A similar power has been given to the Lord President.

10. There are no current plans to issue guidance to the Board and it is difficult at this stage to be precise about what issues might be covered. However, a possible example might be where any future changes to employment or equality legislation impact on the Board’s work. It would however, be for the Board to consider any guidance issued and to decide whether, and if so how, its practices and procedures needed to be adapted to accommodate any new circumstances. It is also possible that the Board might seek guidance from the Scottish Ministers, or the Lord President, on matters that had not previously come before them.

11. What is important is that these matters are handled in an open, transparent and inclusive way. The Bill therefore provides that the Lord President and Scottish Ministers must consult one another as well as the Board before any guidance is issued and that guidance must be published and laid before Parliament. Legislative provision is drafted to have legal effect and does not necessarily explain its purpose. Explanation of the purpose of section 15(5) and (6) is contained in the explanatory notes that accompany the Bill in the usual fashion.

12. While it is appropriate that the Lord President, in his new role as head of the Scottish judiciary, be given a power to issue guidance to the Board, the Bill recognises that the Scottish Ministers have ultimate responsibility for judicial appointments in Scotland. Guidance to the Board therefore requires their agreement. The provision would not impact on judicial independence as, in issuing guidance to the Board, the Lord President would not be acting in a judicial capacity.

Annexe B: FINANCE COMMITTEE’S CONSIDERATION OF THE FINANCIAL MEMORANDUM

Finance Committee
Convener: Andrew Welsh MSP

Dear Bill

Judiciary and Courts (Scotland) Bill – Financial Memorandum

The Finance Committee has now completed its work on the Financial Memorandum of the above Bill.

As you are aware, the Finance Committee examines the financial implications of all legislation, through the scrutiny of Financial Memoranda. At its meeting on 5 February 2008, the Committee agreed to adopt level one scrutiny in relation to the Bill. Applying this level of scrutiny means that the Committee does not take oral evidence or produce a report, but it does seek written evidence from affected organisations.

The Committee considered responses from the Judicial Appointments Board, the Lord President’s Private Office and the Scottish Court Service at its meeting on 18 March 2008. The Committee agreed to write to the Scottish Government Bill Team, asking for a response to points raised in the submissions. Both the submissions and the response from the Bill Team are attached to this letter.

The Committee considered the response from the Bill team at its meeting on 15 April 2008. Members are content that the points raised have been addressed.

If you have any questions about the Committee’s consideration of the Financial Memorandum, please contact Allan Campbell, Assistant Clerk to the Committee, on 0131 348 5451, or email: allan.campbell@scottish.parliament.uk

Yours sincerely

Andrew Welsh MSP
Convener

submissions

Submission from the Judicial Appointments Board for Scotland

Consultation

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

The Board took part in consultation on the Bill but did not see any financial assumptions as part of that consultation.

An opinion had however been expressed to Government officials on behalf of the Board about the financial costs likely to be associated with the Bill as it affected the operations of the Board. In a letter to the then Scottish Executive Justice Department on 14 February 2007, the Board’s then Policy Director commented in the context of budget proposals for the current non-statutory Board:

“[Board members have …] commented that the budget in 2006-2007 would not make an appropriate baseline for future activity, particularly if a new statutory Board is created. They have expressed concern that the financial implications of a new statutory Board should be fully thought through. I would be very happy to be consulted about the content of the relevant financial memorandum at the appropriate time […]” Those concerns were repeated in a letter dated 14 August.

This detailed consultation to establish a budget based upon the operational needs of the new Statutory Board has not yet taken place. It is therefore our understanding that the figures contained in the Memorandum are indicative at this stage and will require to be further developed and refined in discussion with the Board to ensure that they take full account of the identifiable additional cost heads including:

• The current estimate of 1.5 additional/revised staff posts;

• The assessed accommodation needs/arrangements for the Statutory Board;

• Ongoing annual research costs relating to the diversity expectations of the Bill;

• Provision for Legal Advice services for the Board;

• Resourcing the Board’s involvement and ongoing work in relation to the Lay Justice recruitment;

• Resourcing the development of appropriate and relevant recruitment procedures by the statutory Board; and

• The training and development of Board members including inter-Board consultation and communication.

These discussions should also enable the identification of any possible offsetting cost savings which can be achieved without impacting upon the independent status of the Board.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

As noted above the Board has yet to be involved in detailed discussion on the financial assumptions made, in the Financial Memorandum.

3. Did you have sufficient time to contribute to the consultation exercise?

The Scottish Executive published a consultation exercise in February 2007 and we responded within the timescale given. The consultation did not include any details of financial projections.

Costs

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum?

The Board has yet to be involved in the necessary discussions with adequately detailed financial projections to allow it to accurately assess and define the relevant financial implications.

We would stress that the Board does seek to operate upon a cost effective basis, has confidence that this would be supported by inter-Board comparison, and would fully support the Government objective of scrutinising operating costs and maximising the benefits of shared services wherever this can be achieved commensurate with the special significance of our independent status. In the context of staff and office location it is vital that the Board’s standing is protected by operating from premises independent of Government

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

The only costs will be to the statutory Board which fall to be met by the Scottish Ministers.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

We would welcome a longer term financial planning horizon once the initial budget has been determined.

Wider Issues

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

No comment

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

Resource issues would clearly have to be addressed at the time should there be any future developments or guidance resulting in additional finance needs.

Chris Orman
Secretary to the Board

submission from the lord president’s private office

Consultation

The Lord President was afforded an opportunity to comment on a draft of the financial memorandum for the Bill. His points appear to have been taken on board.

Costs

The Lord President is not in a position to comment as to whether the savings which are said to arise as a result of the transfer of certain functions from the Courts Directorate to his own office are stated correctly. The information necessary to assess that matter is held only by the Scottish Government. So far as the costs arising for his office are concerned, he agrees with the assessment of the memorandum, at paragraph 208, that “precise figures are difficult to reach at this stage” in relation to the costs of judicial cover. He would also consider that to apply in relation to the added costs of providing the resources necessary for him to carry out his new functions as Head of the Scottish Judiciary.

In that context, it is to be assumed from the absence of any suggestion otherwise in the memorandum that the resources devoted to judicial training and welfare under the new arrangements are to be the same as those devoted to those matters under the existing arrangements. Paragraph 197 of the memorandum suggests that the placing of clear responsibility for those matters ought to make a positive contribution to a reduction in the level of complaints against the judiciary. It may well be that the placing of a clear responsibility in relation to such matters requires greater material provision to be made in relation to them than has hitherto the case, particularly if there is to be some expectation of the achievement of a measurable outcome such as a reduction in the level of complaints. It is of course the case that in some respects any necessary provision might be found without there being a need for the Scottish Court Service to seek greater resources from the Scottish Ministers, but the matter is possibly sufficiently uncertain that such a step cannot be ruled out.

Secondly, it may be that in respect of certain of the new functions conferred on the Lord President – such as those conferred by sections 26 and 27 (judicial complaints) and 47 to 54 (powers in relation to sheriff courts and sheriffs) – the Lord President will require additional legal support. It is understood that the estimate of staff costs at paragraph 210 of the memorandum is intended to include any such costs, but in the Lord President’s view it remains to be seen whether that estimate is sufficient in this regard.

Wider issues

The Lord President has nothing to add.

Michael Anderson
Legal Secretary to the Lord President

submission from the scottish court service

Question one: Did you take part in the consultation exercise for the bill, if applicable, and if so did you comment on the financial assumptions made?

The Scottish Court Service worked closely with the Scottish Government in developing the Financial Memorandum and agrees that the financial assumptions are reasonable, in so far as the costs can be predicted at this stage of implementation planning.

Question two: Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

Yes, for the reasons above.

Question three: Did you have sufficient time to contribute to the consultation exercise?

Yes, as described above we have been fully involved in the development of the Financial Memorandum.

Question four: If the bill has any financial implications for your organisation do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

We believe that the financial implications have been reflected as accurately as is possible at this stage. We are, however, engaged now in detailed implementation planning for the governance changes affecting the Scottish Court Service and for the Scottish Court Service's role in supporting the Lord President's expanded functions. As this implementation planning proceeds, e.g. as decisions are made about how best to organise the management structures of the Scottish Court Service to support the new corporate body and the Lord President, cost assumptions may change (either upwards or downwards). We are content, however, that the figures in the Financial Memorandum represent the best estimate at the current stage of implementation planning, and that any variation will be within a relatively narrow margin (in the tens or low hundreds of thousands of pounds at most).

Question five: Are you content that your organisation can meet the financial costs associated with the bill? If not, how do you think these costs should be met?

The Financial Memorandum projects a reduction in Courts Directorate expenses of £243,000 per annum by the Scottish Government once the bill is implemented, and it will be important to use this to help defray the additional expenses to the Scottish Court Service (including the provision of temporary judicial cover for members of the judiciary who are engaged in administrative business on behalf of the Scottish Court Service or of the Lord President as a consequence of the bill). However, that leaves around £300,000 per annum of currently-projected costs on the Scottish Court Service which would not be funded by this projected transfer. The Scottish Court Service will be expected (in common with the rest of the Scottish Public Sector) to make year-on-year cash-releasing efficiency savings of 2%p.a. (about £1.3m additional efficiency each year) from initiatives such as process improvement, management of energy demand, and management of our estate. These savings will, in part, be directed at supporting the costs of the Scottish Court Service's enhanced role.

Question six: Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

Yes, based on current assumptions, but as implementation planning progresses during the course of the bill these estimates will be refined.

Question seven: If the bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

Not applicable.

Question eight: Do you believe that there may be future costs associated with the bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

Any further potential future costs, in categories not specifically referred to in the Financial Memorandum, will be a matter for the Lord President and Scottish Court Service to decide on once the new body is constituted. New proposals for expenditure by the Scottish Court Service would have to be accommodated within the budget which Parliament has set for the Scottish Court Service in the Budget Bill and would have to be balanced by efficiency savings by the Service, and therefore do not represent a net additional cost to the Scottish budget. For instance, when the Lord President assumes his new responsibility for the welfare of the judiciary, he and the Scottish Court Service could decide that all members of the judiciary should be included in a Scottish Court Service-funded or administered occupational health scheme (with commensurate savings elsewhere in the Service's budget). That, however, is a hypothetical decision of a body which has not yet been created by Parliament, and possibiities such as this are too speculative to be included in the Financial Memorandum.

Alastair Sim
Director of Policy and Strategy

CORRESPONDENCE FROM THE SCOTTISH GOVERNMENT BILL TEAM

Judiciary and Courts (Scotland) Bill – Financial Memorandum

Thank you for your letter of 12 March regarding the Finance Committee’s consideration of the Financial Memorandum of the Judiciary and Courts (Scotland) Bill.

I should say first of all that, in preparing the Financial Memorandum that accompanied the Bill on introduction to Parliament, we considered widely the impact of the policy reforms and consulted with those likely to be affected, the Scottish Court Service and the Lord President's office. This allowed an informed estimate to be made of the impact of the Bill’s reforms.

The provisions in the Bill in the main involve the repositioning of existing resources for example the costs incurred by the Scottish Court Service; in constituting selection panels under section 18 or tribunals under section 35. In making a calculation of the financial impact of the Bill, the approach taken was to err towards a higher rather than a lower figure. Nevertheless, the identified need for new funding was relatively modest at around £0.4m per annum with a one off capital cost of £200,000.

The Committee are seeking clarification about a number of points raised in the submissions received in response to its request for written evidence from the Judicial Appointments Board, the Lord President and the Scottish Court Service. I am happy to provide a response to the points raised.

Submission from the Judicial Appointments Board for Scotland

The Bill will place the Judicial Appointments Board, which has operated on an administrative basis since 2002, onto a statutory basis. As indicated in paragraph 189–191 of the Financial Memorandum the provisions of the Bill will not change the functions of the Board nor the level of staffing required to support its core work. There are therefore no costs directly associated with the placing the Board on a statutory footing.

Detailed discussions about the annual budget required to support the Board and it projected workload take place for the start of each financial year and are considered on a business needs basis as presented by the Board. These annual discussions will continue to take place and funding will be provided, within the resources available, in response to the business case presented. In the meantime in recognition of an existing need to provide the Board with greater capacity for development work, we have made allowance for an additional 1.5 staff. This has been reflected in the Financial Memorandum to provide as complete a picture of the current financial requirements as possible.

Submission from the Lord President’s Private Office

The Lord President’s Private Office has indicated that, in respect of certain of the new functions conferred on the office of Lord President, the Lord President will require additional legal support.

The Lord President is currently supported by a Private Office comprising 4.5 staff, a legal secretary, two deputies (one part-time), a private secretary and a judicial secretary. The Financial Memorandum, at paragraphs 209 – 211, recognises that, in order to fully support the Lord President in the exercise of his new functions increased support in his Private Office will be required. It will be for the Lord President, in due course, to determine the shape and size of the additional support that is required. This may take the form of additional administrative support or legal support or, as at present, a mixture of both. At this stage, allowance (£250,000) has been made to cover the cost of an additional 5members of staff across a range of grades.

This is, of course, in a addition to the allowance made for additional temporary judicial cover of up to 200 sitting days to accommodate any judicial support the Lord President may wish to seek in discharging his new responsibilities.

Submission from the Scottish Court Service

The submission from the Scottish Court Service makes the point that the Financial Memorandum makes the best assumptions which are currently possible about the administrative structure and costs to the Scottish Court Service as a body corporate. As implementation planning proceeds, and in particular as SCS make decisions about how to discharge their new responsibilities under the Bill, I am advised that is inevitable that there will be some degree of variation from the estimates which are included in the Financial Memorandum. For instance:

• since the SCS will bear the costs of the Lord President's Private Office, any change to the assumptions outlined above about what support the Lord President needed to discharge his new functions would have a marginal effect (potentially downwards as well as upwards) to the costs to the SCS. Detailed implementation planning of the support which the Lord President will require is proceeding in parallel with the passage of the Bill.
• Similarly, any changes to the management structure of the SCS to support the Lord President's new responsibilities would have a marginal effect on the costs to the SCS.
• Decisions by the Lord President which varied the amount of temporary judicial cover which required to be arranged for judiciary who are discharging new responsibilities on his behalf, or for the SCS, would have a marginal effect (downwards or upwards) on the projections in the financial memorandum.
• The Lord President has not yet decided how to implement his proposed responsibility for judicial welfare, and it is therefore impossible to include a reliable estimate. Based on the existing costs of providing health and safety advice for the judiciary, and the current costs of providing welfare services for SCS staff, an initial estimate is that it would cost at least £25,000 p.a. for the SCS to provide health screening, access to counselling support and statutorily required health and safety training, for sheriffs and judges.

Given that these variables cannot be defined absolutely until the Lord President and the proposed statutory SCS have made future decisions, we believe that the Financial Memorandum takes the correct approach of making the best possible estimates at the current stage of implementation planning.

Any variations would, of course, have to be containable within the resources available to the SCS through the Spending Review 2007 settlement, and the projected transfer of resources from the Scottish Government as a result of the transfer of functions from the Courts Directorate of the Scottish Government to the SCS. The estimates in the Financial Memorandum indicate that there may be a difference of a little under £300,000 p.a. between the resources released by the run-down of Courts Directorate and the additional costs to the SCS. SCS are planning on the basis that this gap will be filled by the achievement of efficiency savings within SCS. As part of the Scottish Government's efficiency programme, the SCS is expected to find cash-releasing savings of £1.6m per annum which can be re-invested in priority services and initiatives. The SCS have already identified savings which fully meet this target without prejudicing front-line services, and part of these savings will support the Bill implementation. In making final decisions about how to support the Lord President in his new functions, the Lord President and the new statutory SCS will have to ensure that front-line delivery of court services is not prejudiced by the commitment of resources to support the Lord President's new functions, but on the basis of the projections in the Financial Memorandum and any reasonable assumptions about variation from those projections there is no reason to believe that there will be a conflict between the resources required to implement the Bill and the delivery of front-line services.

Yours sincerely

Mrs M J Wilson
Bill Team Leader

Annexe C: EXTRACTS FROM THE MINUTES

JUSTICE COMMITTEE
EXTRACT FROM MINUTES

7th Meeting, 2008 (Session 3)

Tuesday 11 March 2008

Judiciary and Courts (Scotland) Bill: The Committee took evidence on the Bill at Stage1 from—

The Right Hon Lord Hamilton, Lord President and Lord Justice General, The Hon Lord Hodge and Michael Anderson, Legal Secretary to the Lord President;

and then from—

The Right Hon Lord Osborne, The Right Hon Lord Reed and Sheriff Dickson and Sheriff Fletcher, Sheriffs’ Association;

and then from—

Alan McCreadie, Deputy Director of Law Reform and George Way, Council of the Society, Law Society of Scotland and Richard KeenQC, Dean of the Faculty, Bruce McKain, Director of Public Affairs and Carole Ferguson-Walker, Faculty Solicitor, Faculty of Advocates;

and then from—

Sir Neil MacIntosh, Chairman and Michael Scanlan, Member, Judicial Appointments Board.

Judiciary and Courts (Scotland) Bill: The Committee agreed to delegate to the Convener responsibility for arranging for the SPCB to pay, under Rule 12.4.3, any expenses of witnesses in the Committee’s consideration of the Bill.

Judiciary and Courts (Scotland) Bill (in private): The Committee agreed to accept all written evidence received in response to its call for evidence.

JUSTICE COMMITTEE
EXTRACT FROM MINUTES

8th Meeting, 2008 (Session 3)

Tuesday 18 March 2008

Judiciary and Courts (Scotland) Bill: The Committee took evidence on the Bill at Stage1 from—

Lord McCluskey;

and then from—

Eleanor Emberson, Chief Executive and Alastair Sim, Director of Policy, Scottish Court Service;

and then from—

Ken Brown, Branch Secretary, Eddie Burrows, Branch Learning Representative Coordinator and Brian Carroll, Former Branch Chairperson, Scottish Court Service Branch of the Public and Commercial Services Union;

and then from—

Susan Gallagher, Head of Policy and Research, Jim Andrews, Head of Community Justice and Frank Russell, Head of Quality and Audit, Victim Support Scotland.

Judiciary and Courts (Scotland) Bill (in private): The Committee agreed to accept the written evidence received after the deadline for submission of written evidence.

JUSTICE COMMITTEE
EXTRACT FROM MINUTES

9th Meeting, 2008 (Session 3)

Tuesday 25 March 2008

Decision on taking business in private: The Committee agreed to take item7 and all future consideration of draft reports on the Judiciary and Courts (Scotland) Bill in private.

Judiciary and Courts (Scotland) Bill: The Committee took evidence on the Bill at Stage1 from—

Professor Sir David Edward KCMG QC, Honorary Professor at the School of Law, University of Edinburgh;

and then from—

Kenny MacAskill MSP, Cabinet Secretary for Justice, Moira Wilson, Judiciary and Courts (Scotland) Bill Team Leader, Scottish Government, Alastair Sim, Director of Policy, Scottish Courts Service and Alison Fraser, Solicitor, Courts and Civil Law Division and Catherine Scott, Solicitor, Courts and Civil Law Division, Scottish Government.

Judiciary and Courts (Scotland) Bill (in private): The Committee considered the main themes arising from the evidence sessions.

JUSTICE COMMITTEE
EXTRACT FROM MINUTES

10th Meeting, 2008 (Session 3)

Tuesday 22 April 2008

Judiciary and Courts (Scotland) Bill (in private): The Committee agreed to accept written evidence received after the deadline for submission of written evidence.

Judiciary and Courts (Scotland) Bill (in private): The Committee considered a draft Stage1 report.

JUSTICE COMMITTEE
EXTRACT FROM MINUTES

11th Meeting, 2008 (Session 3)

Tuesday 29 April 2008

Judiciary and Courts (Scotland) Bill (in private): The Committee agreed its report. In so doing, various changes were agreed to.

Annexe D: ORAL EVIDENCE

Official Report 11^th March 2008 Cols 566 – 624

Official Report 18^th March 2008 Cols 628 - 665

Official Report 25^th March 2008 Cols 672 - 704

Footnotes: