Independent thinking called for from the man at the top

THE imperatives of journalistic brevity have long struggled with a neat phrase for the Lord President of the Court of Session and Lord Justice General. Sometimes "Scotland's top judge", but that implied the existence of a periodic judging championship, like Crufts or the SPL. Often "Scotland's most senior judge", but that was a source of irritation for the incumbent's elders on the bench.

Last Thursday, Lord Hamilton slipped quietly into his undisputed status as the head of Scotland's judiciary. The Judiciary and Courts (Scotland) Act 2008 gives him responsibility for the welfare, training and conduct of every Scottish judge from the Justice of the Peace benches to the Court of Session.

The buck will also stop with him on matters of bricks and mortar, technology and staffing from the remotest JP court to Parliament House. The Scottish Courts Service changed on 1 April from a government agency responsible to the Scottish justice secretary to become an independent body governed by a 13-person board, including three lay members, but with a majority of judges.

"This statute is a very significant piece of legislation," says Lord Hamilton. "It not only declares the independence of the judiciary, but it is more than just a declaration. It puts in place the mechanisms for securing it."

Perhaps the biggest change for Lord Hamilton, who succeeded Lord Cullen as Lord President, etc, in December 2005, will be the visibility of the post as the act finally disentangles the judiciary from the legislature and the executive arms of Scotland's governance.

An apparently shy man, he nevertheless seems to welcome the tasks that go with greater accountability – not always the hallmark of Scotland's judiciary in the past.

"The strongest voice a judge has is in his or her judgment. The views of the judges on the circumstances of the cases in front of them will be expressed in the judgment, and should always be so," he says. "That is their route to explaining why they have done the things they have decided.

"We regard broader communication as being an important aspect of the Scottish Court Service work. To assist the public, we have developed a practice in recent times of releasing sentencing statements to the press at the time when a sentence has been pronounced in some particularly controversial case. In the end of the day, it is the judgment itself that speaks.

"However, there will be a difference in other aspects of our work. I can see that there will be, from time to time, occasions on which I will want to speak out, whether that is publicly, or whether it is before the parliament."

Lord Hamilton has already appeared before committees of the Holyrood parliament on several matters. Could he imagine some of his more imperious predecessors, such as Lord Emslie, taking kindly to a request to explain himself to a committee of politicians?

"Well, Lord Emslie certainly had brio," he says. "There's no doubt about that. His moustache might have twitched a little. But things have moved on quite significantly since those days. I think if you are part of the community that regards itself as the third arm of government, alongside the legislature and the executive, you have to recognise you may have to speak out on matters of importance. The act itself provides, for example, for the Lord President to represent the views of the Scottish judiciary to the parliament or to ministers and also provides for putting in written representations on matters of important to the community."

Representing the views of the judiciary raises the further question of how those views will be gathered.

"That will require to be explored under this new regime. I set up a mechanism, called the Judicial Council for Scotland, a few years ago. That meets once a term. It has representatives on it from the Supreme Court of the United Kingdom right down to the tribunals operating in Scotland. It communicates to me information and concerns at these various levels. It has a number of working groups and committees that convey views and concerns at these various levels of judicial office-holders.

"That doesn't mean I don't recognise there are other bodies in the judicial system that have an important representative role to discharge. For example, the Sheriffs Association has been an important player for a long time in this regard and has itself given evidence to parliament. I don't see its role diminishing. But I do see a greater role for the judges speaking as a body from time to time."

The Lord President has long had responsibility for welfare, training and discipline for the Court of Session judges. His writ will now cover every judicial office-holder in Scotland. Will there now be a more transparent procedure or explanation of the outcome when there is a complaint about a judge or sheriff?

"Previously, there were only two options in relation to matters concerning conduct – to deal with it informally, which was not a transparent process at all – or to deal with it in a 'fitness for office' procedure, which some described as the nuclear option. What this statute does is to provide for an intermediate stage in which the Lord President has certain disciplinary powers he can exercise. Some formalisation of procedure is required.

"At the end of last year, we sent out certain ideas on this not only to judicial office-holders, but to a wide range of interested persons, including Consumer Focus Scotland for comment. We've had quite a lot of comment back. In due course, we'll produce some procedural rules in relation to discipline, and one of the things we will be considering is what sort of reporting we make once a decision on a disciplinary matter has been reached."

In political terms, it is usually considered to be unsatisfactory to take on responsibility for everything except your budget. Times, we are advised, are going to be increasingly tight in public spending.

"We were never going to get control of the budget," he goes on. "We have what is known as a line in the Scottish budget, and we shall have to fight for the appropriate figure in that line. And no doubt, along with other areas of the public services, we will not get as much as we would like to have.

"When we were setting up the arrangement, one of the examples was taken from the Republic of Ireland, where they overhauled their system in the 1990s. But they did that in their years of plenty. We are in danger of entering years of famine. In some ways, if there is less money around you have to be sharper, more alert and disciplined in finding ways in which the money can be best spent."

Around the world, it is relatively common that truly independent judiciaries can find themselves in conflict, or at least friction, with their parliamentarians or ministers over legislation by front-page headline. Can a more accountable judiciary retain its indifference to apparent outrage? Does Lord Hamilton see himself as a servant of the public or a leader in public life?

"In the end of the day, we are concerned with the administration of justice effectively, efficiently and deciding cases in a reasonable time. We are public servants, just as parliamentarians are. Neither of us should forget that.

"Judges have to make a decision that they think just in the circumstances of the particular case and cannot be swayed by what happens to be the current fashion or headline in relation to the things that might bear upon what they have to do. They are providing a public service, but defending their independence is part of their service to the public."