Plenary, 11 Nov 1999

Meeting date: Thursday, November 11, 1999

Official Report 791KB pdf

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Temporary Sheriffs

Following this morning's court decision, I now call Jim Wallace to make a statement on temporary sheriffs.

I wish to make a statement about the decision issued this morning by the justiciary appeal court in Edinburgh.

During a criminal trial in Linlithgow sheriff court this year, counsel for the defence challenged the right of the procurator fiscal to take a prosecution before temporary sheriff David Crowe on the ground that the temporary sheriff was not an "independent and impartial tribunal" within the meaning of article 6.1 of the European convention of human rights. The matter was referred to the justiciary appeal court for consideration.

The opinions of Lords Cullen, Prosser and Reed were issued this morning. Each was agreed that the conditions under which temporary sheriffs are reappointed and can be removed are not compatible with the terms of article 6.1. In the cases which they had before them, their lordships ruled that the temporary sheriff should discharge the trial and remit the case to be heard afresh by a permanent sheriff.

Two of the opinions are lengthy and we will need time to give them the full consideration they require. On a first reading, however, the main area of concern relates to the lack of security of tenure enjoyed by temporary sheriffs whose commissions are subject to annual review. The court was also concerned about the legislative provision under which the commission of a temporary sheriff can be recalled at any time by ministers.

The court was at pains to point out that it saw no objection in principle to the Executive recommending appointments. Lord Reed observed that

"The manner of appointment of temporary sheriffs does not point towards any lack of judicial independence."

Nor did the court suggest that ministers had been anything other than scrupulous in the operation of the temporary sheriff system. Equally, the court offered no criticism of the conduct of temporary sheriffs in carrying out their duties on the bench. The concern of the court was essentially with the lack of any institutional safeguards as to the security of tenure of a temporary sheriff and the perception that a temporary sheriff could be influenced by the fact that his commission required to be renewed annually.

It was in 1966 that the United Kingdom granted the right of individual petition to the European Court of Human Rights in Strasbourg. Since that date, individuals have had the possibility of redress where they believe that their convention rights have been infringed. The system of temporary sheriffs has operated since 1971. No case has been taken to Strasbourg since then and successive Administrations have used temporary sheriffs to a greater or lesser degree to assist in the efficient operation of the sheriff courts.

The decision that was announced this morning will require careful consideration. Pending detailed consideration of the judgment, I have asked the justice department to suspend the availability of temporary sheriffs for new civil or criminal business. The Lord Advocate will wish to consider the implications for the Procurator Fiscal Service, which prosecutes cases in the sheriff courts. He will issue guidance on this matter later today. One option the Lord Advocate will look at urgently is whether there should be an appeal to the Judicial Committee of the Privy Council. A decision on that matter will be taken as soon as possible. Leave to take such an appeal was granted by the High Court this morning.

I turn now to the immediate impact on the sheriff court programme. Responsibility for allocating individual sheriffs to cases rests with the sheriff principal of the sheriffdom. The sheriffs principal have already put in place a certain amount of contingency planning against the possibility that the appeal court decision might result in a change in the way temporary sheriffs can be used.

I understand that sheriffs principal, assisted by the staff of the Scottish Court Service, have established a process for prioritising cases before the courts to ensure that the most urgent business can proceed. For example, cases involving criminal trials which might otherwise have run into difficulty over statutory time limits, and cases involving children and other vulnerable people, can expect to be given priority. I have every confidence that the sheriffs principal and the court staff will make strenuous efforts to minimise disruption. The precise arrangements will need to take account of local circumstances.

The Scottish Executive has already taken steps to increase the number of permanent sheriffs available to the sheriff courts. Advertisements for 10 new permanent posts were placed a short time ago and applications have been received. In the next few weeks, names will be put forward to Her Majesty for appointment and we expect the new sheriffs to be operating from around the turn of the year. These new "floating" sheriffs will be used according to need throughout Scotland's sheriff courts.

The Scottish Executive will consider whether the

implications of the High Court judgment point to any need for further strengthening of the complement of permanent sheriffs, which currently stands at 108. I shall make a further statement on that matter when we have had an opportunity to consider the judgments in full.

The position of temporary judges in the Court of Session will also need to be addressed in the light of the decision. Like all other parts of the system, the supreme courts are considering the legal and practical effects of today's ruling.

The decision clearly has enormous practical implications for Scottish justice, some of which the minister has dealt with in his statement. He mentioned temporary judges, but already it has been suggested to me that there may be a challenge to the children's panel system on the same basis.

Will the minister give a commitment to Parliament that an audit of Scotland's justice system will be carried out to identify other potential problem areas? There is another, more far- reaching implication about which I have great concern: the perceived impact of the European convention on human rights. Why was this likely application of the convention not foreseen? What does that say about the advice that the Executive receives regarding the general impact of the European convention on human rights?

Will the minister reflect on the necessity of getting accurate advice on the effect of the European convention on human rights? Will he consider setting up a human rights commission for Scotland in order to achieve that?

I agree with Ms Cunningham that the judgment has important practical implications for the administration of justice in Scotland. I note what she says about the children's panel system. When considering the terms of the three opinions that have been issued today, the law officers and the people who advise the Executive will want thoroughly to consider their impact and implications for all parts of our justice system.

Ms Cunningham is being somewhat disingenuous when she suggests that the Executive or its advisers have been deficient in their approach to European convention on human rights issues. She will recall that it is less than six months since the Lord Advocate took on the European convention on human rights considerations in the Scottish courts.

All actions of Government have been covered by the convention since 1966, when the UK Government allowed the right of individual petition to the European Court of Human Rights in Strasbourg. From 1 July 1999, the Executive became subject to European convention on human rights requirements in terms of our actions as they are justiciable in the Scottish courts.

The court actions were brought at a relatively early stage, since we became subject to European convention on human rights considerations. The Executive had already taken steps to address a possible adverse finding. It is important to emphasise that steps had already been taken.

I hope that Ms Cunningham is in no way suggesting that we should back off from an ECHR culture. It is important that we have a human rights culture in Scotland. As she may be aware, we are considering having a human rights commission. There are pros and cons to that, but we have not put it off the agenda.

I thank the minister for making available a copy of his statement for our analysis in advance of his announcement to the Parliament. I have perhaps been somewhat critical of him in the past, but I must compliment him and his staff on his promptness in making his statement so soon after the issue of the lengthy 99-page court judgment this morning. I hope that other members of the Executive will follow his example of making statements to Parliament before doing so to the press.

Members will recall that, on the day the present Lord Advocate was appointed in this chamber, I drew attention to the need to preserve the independence of his office from political pressures. If we look at this morning's judgment, we find that the starting point of the analysis draws attention to the fact that the Lord Advocate, on 23 May this year, became a member of the Scottish Executive under section 44 of the Scotland Act 1998. As that is the foundation for the judgment, does the minister think that if the Lord Advocate were not a member of the Scottish Executive, and not a member of the Cabinet, there would be no need to change the system of appointing temporary sheriffs, and that the most cost-effective solution to this matter would be to restore the full independence of the Lord Advocate's office, and to remove from him his role in the appointment of all judges, whether temporary or permanent?

I also draw the Deputy First Minister's attention to a submission that was made to the court by the Solicitor General, which is referred to on page 31 of the judgment. In it, the Solicitor General described the Lord Advocate as being seen as "less political" than other ministers. I am sure that members who witnessed the Lord Advocate's performance in this chamber during debates on the Ruddle affair and the Mental Health (Public Safety and Appeals) Act 1999 will regard that submission as one that should be taken with a very large pinch of salt.

Will the minister comment on the position of people who have been convicted by temporary sheriffs since 20 May? Will those cases be subject to review? Might the convictions fall and be set aside?

A backlog of cases will inevitably build up while new permanent appointments are made. Will the minister assure us that he will make regular reports to the Parliament and to the Justice and Home Affairs Committee on the progress made in dealing with those cases?

Although the chair has not previously restricted the number of questions, that was quite a run, Mr McLetchie.

I thank Mr McLetchie for his welcome for this statement. It is a good example of how devolution can work: a decision can be made in the courts in the morning and a statement can be made in Parliament in the afternoon.

Mr McLetchie suggests that the simplest way of resolving this matter is simply to amend the Scotland Act 1998, but that would not resolve the matter. The point that he referred to in the judgment is the start of a narrative; it is not actually the issue on which the matter turned. It is important to point out that the court did not disapprove of the manner of appointment. In his judgment, Lord Reed said:

"I therefore conclude that the manner of appointment of temporary sheriffs does not point towards any lack of judicial independence."

With regard to what Mr McLetchie said about the Lord Advocate, it is important to put on record that the Lord Justice-Clerk, Lord Cullen, said:

"There is no question whatever as to the integrity and fair mindedness with which the Lord Advocate has acted."

Later in his judgment, Lord Reed said:

"I do not doubt that the system has been operated by successive Lord Advocates with integrity and sound judgment, free from political considerations, and with a careful regard to the need to respect judicial independence."

It is important to put that on the record. The key issue here is the lack of security of tenure of those who have been appointed as temporary judges.

Mr McLetchie raised an important point about people who have been convicted by temporary sheriffs since 20 May. I can, of course, understand if he has not picked up every point from reading a judgment of 99 pages, but there does not appear to be anything in any of the judgments that would give any guidance as to the position taken on that. It will be for each individual who has been convicted to get legal advice. Ultimately, it will be a matter for the appeal court, but the doors of Barlinnie are not swinging open tonight and no procession is coming out.

Will the minister examine the whole issue of temporary sheriffs? Society is increasingly being built on the policy of not giving people proper jobs, whether they be sheriffs, teachers, university lecturers or doctors. Will he strike a blow for a more civilised society by having more full-time sheriffs? Although I am sure that temporary sheriffs are very worthy ladies and gentlemen, by their very nature they must be less satisfactory than full-time sheriffs.

I agree with Mr Gorrie that temporary sheriffs are indeed very worthy ladies and gentlemen. It is important to point out that their lordships did not accuse temporary sheriffs of any partiality; indeed, they commended the integrity with which they carried out their judicial role.

We will have to examine the position of temporary sheriffs in the light of this judgment. I have made it clear that temporary sheriffs will not be taking any new criminal and civil cases. As for criminal cases that have already been started, we will follow similar procedures to those advocated by the High Court in this case. The temporary sheriff will be asked to discharge the diet and a new case will start before a permanent sheriff.

The Executive picks up Mr Gorrie's point. We wanted a greater shift towards permanent sheriffs and, in expectation of this judgment, had advertised for 10 such appointments. However, had the court come out in favour of the Crown, we still would have made that switch to right the balance between temporary and permanent sheriffs.

The minister will be aware that temporary sheriffs have frequently been appointed simply because they cost less than permanent sheriffs. In light of that, has there been any assessment of the likely cost implications of today's decision?

I cannot give the Parliament any accurate indication of the costs of today's decision. As I said in my statement, until we have fully considered the terms of the judgment, it will be impossible to determine just how many permanent sheriffs we will need. However, the cost of appointing permanent sheriffs will be somewhat offset by the lower daily payments to temporary sheriffs.

Does the Minister for Justice accept that it would be wrong to allow an undue backlog of civil cases to develop? There have already been concerns about the rise in such cases. Furthermore, will today's judgment have any implications for judgments that have been made in civil cases since May?

Although we clearly do not want a huge backlog of cases to develop, the Parliament will agree that sheriffs principal should give a high priority to criminal cases and cases involving children and other vulnerable persons.

As for civil business, there will need to be careful consideration of the judgment. The obvious distinction to make is that civil cases do not involve the Lord Advocate or procurator fiscal. Civil business that has been started under temporary sheriffs may continue with agreement of the parties. However, the availability of temporary sheriffs for new civil business will also be suspended, pending detailed consideration of the judgment.

The minister will recall that, during the emergency debate on the legislation amending the Mental Health (Scotland) Act 1984, the SNP raised questions about the impact of the European Court of Human Rights. In light of the High Court's decision, is the minister content that he is being given safe legal advice on the impact of ECHR on Scottish legislation?

As Mrs Grahame has practised law, she will know that very often the most interesting and difficult legal cases are the ones that are not foreseen. If one could foresee such things with clarity, one would try to take steps to prevent them.

We should not forget that since 1971, anyone tried by a temporary sheriff in Scotland has been able to take their case to the European Court of Human Rights in Strasbourg. No one has. The system has continued to work with temporary sheriffs being used to a greater or lesser extent. People have appeared before them and no one has questioned the system. According to the figures that I have, even since the publicity surrounding this case, only some 10 to 15 devolution minutes—triggered by a minute relating to the Scotland Act 1998—have been lodged, all of them, bar one, from Linlithgow sheriff court. Across vast tracts of Scotland, people have been working the system. However, that does not detract from the importance of the judgment in any way. We want to give it proper consideration.

I forgot to say in reply to Mr McLetchie that we do, of course, want to bring Parliament up to date with the implications and consequences of the judgment once the different stages are reached, either through a statement in the chamber, in the Justice and Home Affairs Committee or in a written answer.

I thank the minister, but that reply is not satisfactory. Each of the High Court judges agreed—there was not one dissenting voice. I cannot understand how the position could not have been foreseen by examining the legislation. I repeat my question: is the minister content that the advice that he received with regard to the impact of the ECHR on the amended legislation that was put through the Parliament is safe?

I apologise if I did not pick up the precise point that Mrs Grahame was making about the amended mental health legislation. I am content that on the basis of the advice that I was given, the legislation is safe. I could not in good conscience or in law have asked Parliament to consider the bill unless I was able to certify that I believed it to be compliant with the European convention on human rights.

We should not forget, however, that even though we may believe that we are doing the right thing— with all the good advice that we have—and that legislation is ECHR compliant, we have courts because it is the right if every citizen, and the courts, to challenge the Executive. This country does not operate by way of Executive diktat. It is proper that such things are a matter for the courts, despite that fact that the Executive may occasionally find itself on the wrong side of their decisions. That is part and parcel of belonging to a country in which the rule of law applies.

I come at this matter from the perspective of someone who was formerly active as a justice of the peace. In view of the ruling on temporary sheriffs and, in particular, its impact on ECHR, does the Executive have any proposals to pass more summary criminal proceedings to the district courts? Given that the ruling could affect children's panels, what impact will the ruling have on the justices of the peace who sit in district courts throughout Scotland?

Where particular cases are heard is a matter for the Lord Advocate. I understand that it is his position that charges will not be downgraded. As I said to Ms Cunningham, the implications of the judgment for all parts of the Scottish justice system will have to be considered, including the implications for the justices of the peace and magistrates system in the district courts.

In the light of Mr Wallace's remarks about the inability to foresee things, it is my feeling that it is frequently not so much justice that is blind in Scotland, but the Minister for Justice and the Lord Advocate. The political point of today's ruling must surely be the policy that the Liberal Democrats at one time espoused, which I believe is even mentioned in the partnership agreement, on judicial appointments. The Scottish National party, as Mr Wallace knows, has outlined its policy of having a judicial appointments commission. The

Administration should bring forward proposals for a truly independent judicial appointments commission as soon as possible. That would not only solve this problem, but would introduce a much needed new level of democracy into Scotland.

I remind Mr Russell that it was not the appointments that the judges criticised, but the security of tenure. He is right, however, to point out that the partnership agreement refers to consultation on the making of judicial appointments, both to the shrieval bench and to the Supreme Court.

The First Minister said in a speech at the Law Society conference in July this year that the Executive intends to introduce proposals for consultation before the end of the year. That remains our intention. We have said on many occasions that this Parliament should consult and hear the views of those who have some experience and interest in such matters. We intend to pursue that route of consultation towards a more open system of judicial appointment.

That concludes the questions and answers on temporary sheriffs.