Lord Gill on heading up the Court of Session

Lord Gill. Picture: Ian Georgeson
Lord Gill. Picture: Ian Georgeson
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IT was a long journey for Brian Gill to the top job. Advocate since 1967, qualified at the English Bar, QC since 1981 and 
Senator of the College of Justice since 1994 constitutes a more than respectable career CV by most measures.

Friends, however, suggest that rather than settling for that, Lord Gill became increasingly animated by the passive, piecemeal approach that had characterised the administration of justice in Scotland. He prowled, and occasionally growled, from the bench during his five years as chairman of the Scottish Law Commission about the areas where he felt Scots Law was losing touch with the demands on it.

He got his chance to do something about it when in 2007, as Lord Justice Clerk, he was appointed by Justice Secretary Cathy Jamieson to conduct a review of the civil courts in Scotland. It was an extraordinarily broad remit to make recommendations on the “provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods”.

Two-and-a-half years later his far-reaching recommendations were largely accepted by Jamieson’s successor, Kenny MacAskill, and are gradually working their way into legislation. The future will be significantly different from the past.

Appointed Lord President of the Court of Session one year ago this month, Lord Gill is now in the remarkable position of overseeing the implementation of the reforms he proposed. “Are you going to say, hoist by my own petard?” he enquires.

Possibly. But first, has his year gone as he expected? For example, the published Lord Presidential job description on the Judicial Appointments Board website when he applied last year specified that he would spend 80 per cent of his time as a judge. Has he managed that?

He laughs. “There’s not the slightest chance of that. The job has changed out of all recognition.”

He lists the international and UK “diplomatic” commitments in his diary representing the Scottish jurisdiction and then reels off an A-Z of the committees he chairs at home. He is now head of the entire judiciary, including sheriffs and justices of the peace, is responsible for the courtroom estate and he has to make the books balance at the end of the year. “It’s a welcome relief,” he says, “to get the overalls on and get on with some judging.”

Is it also a more political job? “I wouldn’t describe it as that. The decisions that we make here are often taken up by politicians, some with more enthusiasm than others. But that is their job. Applying the law is ours.

“I would agree that many of our decisions get much more publicity these days and elicit more instant comment. That is largely due to the increase in the amount of public law business we do with judicial review applications and human rights issues. That sort of public law hardly existed even 20 years ago.”

While in legacy terms his name will be associated with his civil courts review Lord Gill places his proposals within the “much broader tapestry” of the Making Justice Work programme.

“I think Making Justice Work has been brilliantly conceived and is the basis of a systematic reform that is probably without precedent. Being systematic produces good outcomes. In the past bad outcomes led to piecemeal, shortlived and unsatisfactory reform.”

But there are genuine concerns, for example that the new shibboleths of “speed” and “efficiency” may lead to casualties in terms of justice. Some worry about court closures, the Carloway proposal to abolish the Scottish requirement for corroboration of evidence, and Lord Brailsford’s ambition to telescope family law proceedings.

“I dispute the idea that speed and efficiency are the enemies of justice so long as our other values are not sacrificed in the process. I have no interest in justice that is rushed through for the sake of throughput. But delay and cost have been the bane of Scottish justice for decades. If you have a family law case involving the future of a child, whether it is adoption or contact or residence, justice demands that it be dealt with expeditiously because there is not the luxury of time at the child’s expense. We have then to make sure the outcome is good by building in safeguards of the rights of the child and of the parties. Lord Brailsford’s work is aimed at that combined objective.

“In the past it was in the hands of the litigant which court he chose, the pace at which he prosecuted his case and the way in which he presented it. In a modern society with scarce public resources – and this is a very expensive resource – you cannot tolerate that. The court has interests of its own and the court has to say we see a more effective way of dealing with theses cases than you do and our way is how it’s going to be.”

The inevitable consequence of his civil courts reform, pushing more cases out of the Court of Session into the sheriff courts – reserving the higher court for higher value cases and significant points of law – is that he’ll need considerably fewer judges to do the work.

“It is reasonable to expect that with a great swathe of work being removed from Court of Session there will be less need for the present complement of judges. That will be very carefully managed through retirement and so on.

“But I expect to see the emergence of great quality in work in the sheriff courts informed by expertise and specialisation. The quality of justice in the sheriff courts will be every bit as good as it is here but will serve the public better. The age of the generalist is gone now. The law is much too complicated for generalists to dabble in any more.”

Nevertheless, he is bound to be aware of the concerns expressed by the Faculty of Advocates that the reforms will have for its members, especially for the junior bar who might be squeezed out of the higher courts and priced out of the sheriff courts.

“I can understand that but the opportunity should still exist for the specialist bar to work in the sheriff courts because some significant litigation will be taking place there. It would be helpful and in everyone’s interests if members of faculty were given proper opportunities to appear in significant sheriff court actions. I would greatly regret it if they didn’t.”

Whatever the criticisms of any of his public decisions – such as his refusal to attend the Holyrood petitions committee to discuss the merits of a register of judicial interests –no-one can claim he is not clear.

His private hinterland is less well known, including his forays into composing church music.

“Music has been my life and I love it. It is a lovely relaxation to sit down and write a piece of music. No matter how inadequate my efforts may be, the process is a relaxation and pleasure.”

His choral compositions have been performed by “several choirs”. There may never be a better time to use the metaphor that the Lord President expects his judiciary to sing from the same hymn sheet.