Plans to unify the judicial hierarchy need special care

Published on Monday 14 May 2007 01:44

WHOEVER ends up holding the reins of power at Holyrood, work is already piling up for the next justice minister - and near the top of the in-tray are the proposals for a draft Judiciary (Scotland) Bill.

A consultation on the proposals was launched in February and formally ends today. If the responses to the first version of the Executive blueprint for modernising the judiciary - Strengthening Judicial Independence in a Modern Scotland - are anything to go by, we can expect further heated debate.

Last year, senior members of the judiciary voiced deep concerns about Executive's plans for the unification, appointment, removal and management of the judiciary. Former lord president Lord Cullen said the proposals showed "a lack of understanding of the significance of judicial independence".

A combination of such critical responses and the lack of time before the parliamentary session ended persuaded ministers to kick the plans into the long grass.

The proposals have been revisited, ostensibly to address some of the concerns raised. But there is still a feeling among senior lawyers that as the core aims remain, there remains potential for judicial independence - or at least the perception of it - to be weakened rather than strengthened.

Certainly Roy Martin QC, the dean of the Faculty of Advocates, sees significant problems with what's being proposed. He argues that creating a unified judiciary would concentrate more power in the hands of the Lord President and could therefore undermine independence by reducing the "diversity" inherent in the current three separate tiers.

"The creation of a unified judiciary under the control ultimately of the Lord President of the Court of Session has the propensity to centralise power over the judiciary which, if not regulated very carefully, could be seen to undermine independence," he says. "I obviously make no criticism of the Lord President or any member of the judiciary in that regard - we are talking about theoretical matters - but nevertheless the concentration of power as opposed to the diversity of power which exists in the three tiers of the judicial system in Scotland is something which could give rise to a loss of independence overall."

A lack of separation between the civil service and the courts administration could be intensified, he adds, and lead to concerns that the independence of the judiciary is compromised.

"If it is the case that a unified judiciary is to be served by a single court service, which would be logical, it is also important that that single court service is seen to be independent of the Scottish Executive," he says. "At the moment, the courts are served by civil servants who are accountable to the Scottish Executive and, once again while I make no criticism of any individuals, if you are to create a single judiciary, served by a single court service, staffed by members of the civil service, who are responsible to Scottish ministers, then there is obviously the perception that the court service is not independent of the Scottish Executive.

"I am aware that serious consideration is being given to this matter and that arrangements are likely to be proposed which will demonstrate that any court service which is to serve a unified judiciary is as functionally and financially independent of the Executive as is possible. I would like to urge upon any incoming administration the importance of making sure that happens."

He adds that there are measures which could reinforce separation between the court service and the Executive: "As far as the practicalities of how the independence of the Scottish Court Service can be assured, there are obviously mechanisms such as the ring-fencing of budgets and the creation of a separate category of public servant, whose duties are to the judiciary rather than to the Executive, and the Faculty would urge that in the creation of any arrangements ultimately these sorts of factors are present."

Martin suggests that even if any bill proposes a statutory duty for ministers to respect the independence of the judiciary, this may not be enough to allay concerns: "I believe it is very important not only that this duty exists in a technical sense but that all the arrangements which are put in place to provide for the judiciary demonstrate that it is being respected."

"I believe that there is a tendency among members and officials of the Scottish Executive to see the judiciary and the judicial establishment as simply one of a number of components in a system for the administration of justice, and the ability to ensure that such a system is delivered efficiently and economically leads to a desire for a greater control over the management of the judiciary.

"I would urge any administration to recognise that the judiciary is a unique element in the justice system, existing in a constitutional framework where it is, and must be seen to be, independent, both of the Executive and the legislature and that the judicial system is not equivalent to any other component in the administration of justice."

Martin is also concerned by developments south of the Border where the Home Office split has generated some considerable anxiety among judges, and says that that perception is vitally important in the debate about judicial independence.

The Law Society has set up a working group, convened by deputy director of Law Reform, Alan McCreadie, to consider the proposals. A spokeswoman says it has already identified "a number of possible contradictions" in the draft bill relating to judicial independence and the group also has concerns about the proposed changes to the role of the Lord President: "In their view, there is inadequate consideration given to the administrative and organisational skills required in the proposals by a Lord President taking on broad and involved administrative functions.

"The worry is that the role would no longer fully utilise the advanced legal skills and experience of any lawyer likely to be appointed to this position. The group will suggest that the Executive consider introducing a role of chief executive or judicial assistant. In short, judges should be left to judge."

The Executive says that it could not comment on any timescale for the progression of the proposals for the draft bill at present.