Plenary, 11 Nov 1999

Meeting date: Thursday, November 11, 1999

Official Report 791KB pdf

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Subordinate Legislation

The next item of business is a debate on motion S1M-228, in the name of Mr Jim Wallace, recommending that the Maximum Number of Judges (Scotland) Order 1999 be approved. Those who wish to speak in the debate should indicate now.

The order which we are considering today is the legislative vehicle for increasing the maximum number of judges who serve in Scotland's supreme courts. Prior to today's debate, members were provided with a brief note on the background to the order. I hope that that was helpful, but I will take a few minutes to explain in more detail why we consider it essential that the order be approved today.

The supreme courts are Scotland's flagship for the delivery of justice to our people. The judges who have the task of dispensing justice have a huge responsibility, and I believe that they carry it out with distinction. The reputation of the supreme courts is justifiably high, and it is in the interest of all of us that it remains so. The most recent evidence of that reputation is clear from the appointment of Lord Cullen, the Lord Justice- Clerk, to lead the inquiry into the Paddington rail crash. Lord Cullen's reputation in dealing with national disasters was firmly established in his sensitive handling of the inquiry into the Piper Alpha tragedy and, more recently, of the inquiry into the shootings at Dunblane Primary School.

Another compliment to the reputation of the supreme court bench may be seen in the appointment of Lord Reed to serve as an ad hoc judge of the European Court of Human Rights at Strasbourg. On other fronts, judges serve with distinction on some of our key public institutions such as the Parole Board for Scotland and the Boundary Commission for Scotland. A judge also heads the Scottish Law Commission, which has produced many valuable reports on aspects of the law over the years, a number of which have contributed greatly to the modernisation of our domestic legislation and will form the basis for legislation to be brought forward by this Parliament. Judges also take on responsibilities for chairing ad hoc committees on issues of public concern. I have in mind the review of serious violent sex offenders, chaired by Lord Maclean, and the expert panel on supervision of sex offenders in the community, chaired by Lady Cosgrove.

Scotland's worldwide reputation is also evident

from the constant stream of visitors from legal jurisdictions around the world who come to Parliament House to see our systems in operation. In the very first week of the Scottish Parliament, we were honoured to host the Worldwide Common Law Judiciary Conference in Edinburgh, represented by common-law judges from around the globe. Next year, the Scottish judiciary will receive the Commonwealth Magistrates and Judges Association's conference, with 400 of the most senior judiciary in all Commonwealth countries converging on Edinburgh for a week of discussions about issues of common concern. Those events serve only to demonstrate the international reputation of Scotland's court system.

As we gather today, however, Scotland's senior judge, the Lord President, faces the imminent loss of nearly 20 per cent of his complement of senior judges, when four of them depart from around the end of January to take the Lockerbie trial in Holland and Lord Cullen assumes full-time duties with the Paddington rail inquiry. Lord Rodger has a statutory responsibility for managing the business programme of the supreme courts under the Court of Session Act 1988. The view he has conveyed to ministers is that the domestic programme of the supreme courts must not be allowed to suffer as a result of losing such a significant number of judges to other important tasks. Lord Rodger has drawn attention to the heavy programme of business in the courts, and has noted that the provisions of the Scotland Act 1998 and the Human Rights Act 1998 will, if anything, add to the work load. The experience of applications relating to devolution issues suggests that human rights points will have a very significant impact on the business of the supreme courts.

I believe that the case for an increase in the number of judges is a very strong one, and we would not be thanked by the many who use the courts if we allowed the system to operate at 20 per cent below strength for the period of the Lockerbie trial and the Paddington inquiry. Delays in handling business, particularly in the Court of Criminal Appeal, are already at higher levels than one would wish, and the Lord Justice-General is examining ways of speeding up the process in consultation with all the parties who are involved in the appeals system. Any failure to provide enough judges to hear cases would guarantee increased delay and frustration for those who look to the courts to deliver justice.

Let me clarify what the Executive is asking of the Parliament today. We seek the authority to increase the maximum number of judges by five, although that does not mean that five new permanent appointments will be made automatically within weeks of the order being approved. Lord Rodger is considering the position carefully in the knowledge that all or most of the five judges who are deployed to the Lockerbie trial and the Paddington inquiry will return to Edinburgh when those tasks are over. It is expected that there will be some natural wastage from early retirements and, in the longer term, the complement may revert to something nearer the current maximum of 27. However, this is not an exact science. In the next few weeks, the Lord President will put his final proposals to ministers in the light of his assessment of the work load facing the supreme courts over the next few years. We should clear the way today for five new appointments to secure continuity of service to court users.

The cost of five new judges would be about £700,000 in a full year and these costs will fall on the Scottish consolidated fund. However, there are substantial offsetting receipts to be taken into account. For example, the Treasury will meet 80 per cent of the cost of the Lockerbie judges under special arrangements for meeting the revenue costs of that trial. The Health and Safety Executive, which is responsible for the investigation of the Paddington rail inquiry, will meet the whole of Lord Cullen's costs. These receipts will be available to offset the cost of employing new judges.

I should like to take this opportunity to anticipate a question or two about our procedures for appointing the judiciary in Scotland, which Mr Russell raised during my earlier statement. If the order is approved today, the new judges will have to be appointed in time to take the place of those leaving in January. Procedures for appointing judges are set out in section 95 of the Scotland Act 1998, under which the First Minister will recommend names to Her Majesty the Queen but, before doing so, he must consult the Lord President. In addition, like all his predecessors, he will receive advice from the Lord Advocate, who is well placed to offer opinions on the quality of those who should be considered for these important public appointments.

Looking beyond these immediate appointments, I confirm that it is the intention of the Executive to consult widely on the future arrangements for the appointment of sheriffs and judges. The partnership agreement published by the coalition in July gave notice of our intention to consult and we are not departing from that. Indeed, we are preparing to launch the consultation process and we shall be ready to listen to views from all quarters on possible changes in our system. That is not to say that the traditional arrangements for recommending appointments have let us down. I have already referred to the excellent general reputation of those appointed to the supreme court bench and the further particular contribution of several of its individual members.

The order is important and, by approving it, Parliament will signal that it values the high reputation of Scotland's supreme courts and that it is determined to maintain that reputation. That will tell the people of Scotland that the Parliament acknowledges the importance of maintaining the quality of service to those who use the supreme courts to secure justice.

I move,

That the Parliament in consideration of the Maximum Number of Judges (Scotland) Order 1999 recommends that the Draft Order in Council be approved.

I doubt that the minister will find much disagreement this afternoon about this order, although, given this morning's ruling on the temporary sheriffs and the effect that that will have throughout the system, it may be that rather more than five judges will need to be added to the existing complement. We may have another order before us at some time in the future. I note that the Scottish Parliament information centre's research note flagged up that potential problem. The minister may wish to indicate whether he has considered the possibility that he may have to come back with another order asking for yet more judges.

We are all aware that Scotland's justice system has been under considerable strain. Many members will have received letters about the lengthy delays that occur, particularly in the civil courts, and which have attracted widespread critical comment from judges as well as others. To add to the existing strain on the system, we know that we are facing further pressure from the requirements imposed by the Lockerbie trial and from the appointment of Lord Cullen to head up the Paddington rail inquiry.

However, we should welcome those extra impositions. The Lockerbie trial promises to showcase Scottish criminal justice internationally, in a way that has seldom, if ever, happened before. In Scotland, we know that our criminal justice system is second to none, whatever its faults. Being a small jurisdiction, we are aware that few outside Scotland and outside the narrow professional interest are familiar with the strengths of our system. We should be glad that, as a result of the international news coverage that the Lockerbie trial will achieve, the world will have an opportunity to see at first hand what we have known for a very long time.

The choice—once again—of Lord Cullen to head a major public inquiry is another feather in the cap of the Scottish judiciary. I am sure that the whole Parliament will join me in congratulating him on that appointment.

While today's order is a response to a potential crisis, it should not be seen in a negative light. Indeed, when the appointments are made, it will be the first time that the provisions of section 95 of the Scotland Act 1998 have been implemented. We sometimes forget that this Parliament is so new that we are still chalking up firsts. This will be another one.

That opens up the general debate about judicial appointments and raises the question whether the methods by which they are made are the best we can devise. As I recall—my colleague Michael Russell also mentioned this—the partnership agreement between the Labour party and the Liberal Democrats stated that judicial appointments should be examined. The SNP's view, certainly, is that the process should be radically revised. That means that there is likely to be widespread agreement in the chamber that reform is appropriate. I will not go out of order by debating the issue in detail today; however, I welcome the minister's comments on the subject.

I hope that, as a result of this debate and of the statement and questions that preceded it, the business managers will consider setting aside time in the near future for a specific and full debate on the subject of judicial appointments. For today, and for the SNP, I simply record our agreement with the order.

We, too, accept the draft order and everything that lies behind it. It is ironic that John Swinney complained yesterday that we had insufficient time for the European debate. At Westminster, six hours would be allowed for such a debate, whereas a statutory instrument such as this would whistle through in about half an hour.

It is opportune that we are debating this order today, given the minister's announcement immediately before this debate. We have the opportunity to consider the three judges' decision on the temporary sheriffs; a question arises about whether the judges could gain some benefit from their decision. Will the European Court of Human Rights determine that we should examine that matter at a later date? Nothing would surprise me. The ECHR will certainly want to look at the temporary upgrading of sheriffs to the position of judge.

The order allows for the appointment of five more judges. I agree with Roseanna Cunningham that that increase simply established the status quo. Four judges are going to the Lockerbie trial, Lord Cullen will head the Paddington inquiry and eight temporary judges are regularly in use. Those facts suggest that five further judges will not fulfil

the overall requirement. Given the situation that has developed today with regard to the temporary sheriffs, the minister should consider increasing that number if possible. Like Ms Cunningham, I believe that that would have the support of everyone in the chamber.

The establishment of the Scottish Parliament and the introduction of new legislation must be taken into consideration. Bills such as those on feudal tenure and on adults with incapacity may add to the burden of the courts. The bill on land reform that will be introduced in due course will certainly have that effect.

There is a feeling that, all too often, cases that involve very serious charges—murder or serious assault, for example—against individuals are downgraded and passed to the lower courts, to save time, effort and perhaps costs in the higher courts. The minister will, no doubt, suggest that that would never happen, but I suggest that there is evidence that it might.

When the minister examines this draft again, he should consider increasing the number of judges that is mentioned. That does not mean that we should automatically appoint that number. As he has said, that would provide room for manoeuvre. If more judges were needed, more could be appointed.

Finally, regarding Ms Cunningham's point about appointment of judges, all parties in this chamber would welcome further debate on that issue.

This is an important and historic moment for the Scottish Parliament, although the number of members in the chamber might not suggest that.

Today we will make a decision on the Maximum Number of Judges (Scotland) Order 1999, acting on the Lord President's request that there should be an increase in the number of judges.

On 26 August I asked the Minister for Justice how the Executive would cope with the work load of the four High Court judges who will preside over the Lockerbie trial. I was, therefore, pleased that Mr Wallace replied that the aim was to make sufficient new appointments to cover that. Since then, the tragic Paddington rail disaster has occurred and the consequent public inquiry is to be presided over by Lord Cullen. The expertise of our High Court judges has been called on, leaving Scotland five judges short.

I am delighted to see this order before us, however, for wider reasons than those that I have already mentioned. We are presented with an ideal opportunity to consider the make-up of our judiciary, the educational backgrounds of its members and the system of appointment. We can—dare I say it?—also consider their removal, should that need arise. Through increasing the number of judges, I hope that we can at last begin to redress the gender, class and race discrepancies that undoubtedly exist.

Our understanding must be clear that if we affirm this order, the First Minister will be called upon to exercise his statutory role thereafter. The draft order in council that is before us seeks to amend the Court of Session Act 1988 to increase from 27 to 32 the number of judges on the Scottish bench. It is crucial that we note that those will be new appointments.

It must be said that, to many ordinary people, the judiciary is a complete mystery and, in fairness, many lawyers and legal practitioners will say the same. The common image of a High Court judge is of a man in a rather odd wig, who needs to ask a clerk to explain who the Beatles were. Having said that, I would like to put on record that the Scottish judiciary is highly regarded throughout the British and the European legal establishments. We know that that is why Lord Cullen has been chosen to oversee the Paddington rail inquiry, and why the youthful 40-something Lord Reed can, on occasion, be found at the European Court of Human Rights. It is also to Lord McCluskey's credit that he showed last week how difficult it is to make decisions about people's lives, when he painfully sentenced a 16-year-old woman to life imprisonment.

The process of appointing High Court judges in Scotland is as clear as the white smoke that comes after the appointment of a new pope. Most lawyers will tell you that they have no idea how judges are appointed and less idea how to remove them. Several constitutional lawyers have argued that it is virtually impossible to remove them. To my knowledge, no High Court judge has ever been removed. Given that they operate under absolute privilege in court and that they hold enormous power in society, we must examine that anomaly.

It cannot be right that, at the end of the 20th century, we cannot easily see what goes on at the top end of our criminal justice system. No other section of Scottish society is so shrouded in mystery. The rules of employment of judges should be completely clear to all of us.

All in this chamber believe that our justice system should be fair and transparent, so we should also take the view that such principles should apply to the highest judges in our land. Scottish Labour believes that the system must be modernised and that we must go further than ever in doing so.

Of 27 High Court judges, one is a woman and 12 went to the University of Oxford. There are no

black or ethnic minority judges. To be blunt, the Scottish bench contains too many upper-class white men, and no matter how wonderfully talented they might be, that situation is not good enough and there has been no serious attempt to redress that imbalance.

Scottish Labour believes that we need more women, in particular, in the judiciary. There has been an influx of talented, qualified women at the Scottish bar, a place where judges usually begin their careers. There are also women and men from a wider range of backgrounds, schools and universities at the bar. We want a competent bench of judges that is more reflective of the Scotland in which we live today, not some relic of the past. The appointment of five more judges means that the changing image of the judiciary is within our grasp. I believe that there is a strong will to act.

This debate is of major significance to the Scottish people, as we are attempting to change an institution that is at the heart of justice in our society. We should all remember that any of us, for any reason, could find ourselves explaining our innocence in front of the courts. We should all care deeply about the way in which we hand out power. Judges decide the fates of those who are charged, and the Scottish people need to believe in the fairness and integrity of the justice system under which we all live. It must stand up to scrutiny. Let us pass this order today, without dissent, and we can look forward to the day when the First Minister is able to announce the appointment of more women to the Scottish bench.

I do not think that anybody could reasonably take exception to what is being proposed today. Society in general is becoming much more litigious; we must accept that. Civil law, in particular, is becoming more complex. The regrettable introduction into the British set-up of the transatlantic settlement has possibly resulted in cases being fought much harder than formerly.

We must also realise and appreciate the effects of the European human rights legislation on Scots law. Although that has been a beneficial influence in many respects, in other respects there is a cost that must be borne. The first cost is the financial cost. It has already been highlighted that we will have to appoint approximately 30 full-time floating sheriffs. I have made an initial calculation of the cost of that particular exercise. Those 30 appointments, plus the appointment of four additional members to the senate of the College of Justice, as was outlined by Mr Gallie, is likely to cost us £3.5 million. That is a net figure, after the amount of payments that would not have to be made in respect of temporary sheriffs has been deducted. It has been a fairly painful exercise on the Parliament's budget so far today.

However, budget and law must not be seen to clash. As Roseanna Cunningham said, we are very proud of our legal system in Scotland; it is undoubtedly the best in the world. We certainly do not want to do anything that would prejudice the standing of Scottish justice in any respect. Nevertheless, it is essential to point out that, at the same time, there are imperfections that could be addressed by examining the number of judges. There is no possible excuse for lengthy delays to civil actions that are brought before the Court of Session or the sheriff court. It must be recognised that, in criminal matters, a time bar exists on many statutory offences that are taken in summary complaint.

I do not think that it is acceptable, Lord Advocate, that in many cases it takes many months, subsequent to the original appearance of a petition, for an indictment to be served. In the current justice system, many cases are dealt with under the 110-day rule. However, in certain jurisdictions there are lengthy delays in the service of an indictment—sometimes of eight or nine months. That must be addressed. It may be that there is a shortage of judges, or that the prosecution service is not being properly resourced. In time, that should be examined.

Generally, we must accept that the situation is as it is, and that we will be required to lay out the necessary expenditure and adjust matters accordingly. However, some of the remarks that Pauline McNeill made are unacceptable to the Conservative party. We want the best possible persons on the High Court bench, irrespective of race, creed, colour or gender. If all the new appointees turned out to be women, and they were the best people for the job, there would be no complaint at all from the Conservative party.

I am disappointed, as I did not think that my comments were unacceptable. Does not Mr Aitken think that there must be more talent at the Scottish bar, more women who are capable of being judges in Scotland? It cannot be true that there is only one woman who is capable of doing the job. We have a responsibility to invite women to take part in our judiciary.

I have absolutely no hesitation in agreeing that there are many very able women at the bar; nor have I any hesitation in saying that I would welcome more appointments from women at the bar. However, it is imperative that those who are appointed must be the best people for the job and must not be appointed on the basis of some of the politically correct thinking that is prevalent at the moment.

Does Bill Aitken accept that inequalities, particularly in relation to gender imbalance, have also been rife in the political system over the years and that it was only because action was taken to ensure that this Parliament had a decent representation of women that we achieved some success on that front?

Some of us have a difficulty with that argument, but I certainly agree that, historically, women have not been encouraged to follow that route. If the situation is now being corrected, we have no difficulty whatever with that, but we have a difficulty with people who are not the best applicants being appointed to posts on the basis of their gender. We cannot accept that situation.

The Administration will find no dissent from the Conservatives on this matter. We recognise the need for more judges, we have flagged up a few potential problems and we hope that our concerns will be addressed in the months ahead.

I welcome the statement. It is clearly correct to make appointments and I hope that there will be more women judges as a result of today's draft order. One out of 27 is not the most creditable of situations.

My main concerns are about the future, when the five judges return from their important duties at the Lockerbie trial and the Paddington rail disaster public inquiry. I hope that we will be able to retain some extra judges above the present 27. According to the SPICe research note, under section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, there are four retired judges who are at present serving. Perhaps the Lord Advocate could clarify whether, when he referred earlier to natural wastage, the Minister for Justice meant that those retired judges would no longer continue to serve or whether he meant that, of the 27 judges who currently serve, some are likely to retire.

As other members have said, we need extra judges because of the growing work load. I read some figures recently that showed that Scottish judges apparently devote an average of 207 days a year to judicial duties, a figure well above the norm in the United Kingdom. There were 4,788 court sitting days in 1998-99—higher than the 4,624 sitting days in 1997-98. Ten per cent more civil cases have been registered in the first six months of this financial year than were registered in the same period last year. High Court work load continues to rise, with 17 per cent more cases recorded in the six months to the end of

September 1999 than were recorded in the same period last year.

I ask the Minister for Justice and the Lord Advocate to suggest to some of the new judges that they might like to take the High Court around the country. They could take it to Jedburgh in my constituency, where the court was last held five or six years ago. That would, of course, entail the temporary transfer of some business to Duns sheriff court, the closure of which, as the Minister for Justice will note, is opposed by the Scottish Borders Council, the district courts in Berwickshire, local justices, Berwickshire community councils, the police, my colleague Archy Kirkwood and myself, the faculty of solicitors in Berwickshire and Roxburghshire, and the Law Society of Scotland. I hope that he recognises that point.

In welcoming this order, I, too, hope that we can have a debate at a later date on the judicial appointments process.

I was interested by what Bill Aitken said on judges and the gender issue—especially coming from Glasgow. When Bill was on Glasgow City Council, Conservative female representation on the council was only 33 per cent. Now, of course, it is 100 per cent female, and no doubt the Tory group on the council has improved greatly. The fact that there is only one Tory elected representative is perhaps the downside of that.

There is a solid, strong argument that there should be a mechanism to encourage the full participation of women in public life. There is a great symbolic issue around the appointment of women judges.

Does Mr McNulty believe in positive discrimination?

I believe in a positive system of encouragement of women in all areas of public life. The law is an area in which, perhaps, women have not progressed as far as they should have.

Does Mr McNulty agree that men have been the beneficiaries of positive discrimination for centuries, if not millennia, and that those who argue against positive discrimination selectively choose to forget that small fact?

I will certainly not disagree with Roseanna Cunningham about that.

Another interesting aspect of Bill Aitken's speech was that, in effect, he did not object to any increase in the cost of running the system. Although I accept the arguments for increasing the

maximum number of judges—as Roseanna Cunningham and Jim Wallace said, the allocation of Scottish judges to tasks elsewhere is a testimony to the individual reputations of Scottish judges and to the Scottish legal system—I feel that the speed at which cases are dealt with and the growth in the work load mean that that measure can be only part of a solution. We must examine how the system operates, bearing in mind that people in Scotland are becoming more litigious and that cases are becoming more complicated. Appointing more judges will go some way towards relieving the temporary backlog and dealing with the problem that is caused by the fact that some of our judges will be elsewhere doing different business in the next two or three years.

The broader issue about how the criminal and civil justice systems work requires further consideration. Costs are a consideration. Money that is spent on the operation of the justice system is not being spent elsewhere. Although I would defend to the hilt the principle that the justice system must be seen to be equitable, fair and to work effectively, we must still reflect on how that should be paid for. I do not think that the matter of cost should be overlooked.

I understand that the Lord Justice-General has met the Crown Office, the Faculty of Advocates and others to discuss issues arising from work load. I welcome those discussions but hope that, once we have passed the order, ministers will talk to us more generally about how work load issues will be handled and involve us in the consultation on the appointments process. Pauline McNeill and others made important points about how that process operates.

The Parliament has adopted strong principles of transparency and openness. In doing so, it has set a model for Scottish public life. In Scotland, we want to see as clearly as possible how things are done. I welcome the consultation process and look forward to receiving its conclusions and to debating the way ahead in Parliament. Those are important issues in supporting and enhancing the credibility and reputation of the Scottish legal system and the position of Scottish judges.

While we should congratulate the judges and the legal system on the way in which they have operated until now, we should recognise that their growing work load will force change, as will the political culture that we are creating in Scotland. We should embrace that and build on the strength of the existing system, to make it more accessible, transparent and accountable to the people of Scotland and in that way prepares it for the new millennium.

Pauline McNeill talked about the lack of gender balance in the judiciary. Women are less likely to be chosen in any area of public life because the people doing the choosing are usually men. If we want gender balance in the judiciary, the way forward might be to have gender balance in the people who choose the judges. Judges and similar public appointments should be chosen by representatives of the whole community rather than judges choosing other judges, because then the pattern is self-perpetuating.

I also raise the possibility that judges should have special training in areas where, although I know that I must not murmur against judges, I believe they may often not make the right decisions—in cases of rape and sexual and domestic abuse. It is not always fully appreciated by the judiciary just what goes on in such cases, and the judiciary may exhibit stereotyped and outdated views on the place of women and women's responsibility for their own safety.

I hope that Lord Hardie will address those points in his reply.

I support what Maureen Macmillan has said on advancing women on merit to be senators of the College of Justice. Hazel Aronson has forged a blazing trail and created history as the first woman to do that. She is a person of enormous ability and I have no doubt that many more women will follow in her footsteps.

This debate arises in large measure as a result of the terrible tragedy at Lockerbie. Because of the desire of the victims and their families to seek justice, a trial of the accused will take place on foreign soil under Scots law and Scottish judges. The night of the tragedy was one of the most traumatic of my life. I was told by Jim Sillars that a jumbo jet had come down on Lockerbie, so I went to Dover House, to the Secretary of State for Scotland's office. Arrangements were being made for a RAF jet and helicopter to take him to the scene of the disaster.

When I arrived back in the House of Commons, Neil Kinnock asked me to ensure that Donald Dewar went as well. He and I arrived at the scene shortly after midnight and witnessed the effects of the nightmare that had unfolded. My most vivid memory is not just of the disconsolate groups of firefighters, police and soldiers, but of the rows of empty ambulances. To some extent, I was anaesthetised by the darkness. There was a feeling of impotence, despite the great will to assist. The tragedy had happened and those

directly affected were either alive or dead; there were very few injured. There was an awareness of the enormity of the tragedy. To give some idea of its scale, more Americans lost their lives at Lockerbie than British were killed in the Falklands war.

Today we face the consequences of that night. Four of Scotland's 27 judges will attend the trial and will be unavailable for service in this country. It is not the only tragedy with implications beyond Scotland that Scottish judges have to deal with. Lord Cullen, whose reports on Piper Alpha and Dunblane were of the highest standard, and who is known for his compassion and humanity, as well as for his great ability, is to conduct the public inquiry into the tragedy at Paddington. As a result, the Lord President of the Court of Session has reasonably submitted a request that there should be an increase in the maximum number of judges to deal with court business in the absence of the five senior judges who are performing their duties elsewhere. Without the extra judges, the courts would be put under intolerable pressure.

In any case, there is a need for more judges because of the increased work load on the supreme courts, especially in relation to criminal matters in the High Court of Justiciary. New laws that relate to fresh evidence have an impact on the High Court of Justiciary in its appellate jurisdiction, which has to deal with detailed legal arguments and the presentation of complex facts. That means that appeals can take a considerable time. Similarly, in the Court of Session more civil trials are going to proof or to jury trial, which adds to the pressure.

In addition, the new measures in the Scotland Act 1998 and the Human Rights Act 1998, and the obligation that the courts must comply with the European convention on human rights, are increasing the work load of the criminal and civil courts on account of the complexity of the issues involved.

The work load of Scotland's judges will increase considerably as a result of those factors, so the news about temporary sheriffs is of particular concern. To illustrate, there are 108 permanent sheriffs and 126 temporary sheriffs, and 10 permanent sheriffs are being recruited. I submit to the Lord Advocate that suspending the use of temporary sheriffs for all new cases could lead to an upsurge in the work load of, and a massive upheaval to, the courts system.

I respectfully request that the Administration return to this Parliament when it has fully and properly assessed what the consequences of the draft order in council will be. I realise that contingency plans have been put in place, but they will not be sufficient to deal with the massive hole in the court system that will be caused by the overnight removal of 126 temporary sheriffs. I ask the Administration to address the matter urgently, because it is too soon to judge the full implications.

It is essential that the Executive should make clear the contingency plans that will be put in place if the current contingency plans are insufficient for the purposes required. I hope that the Lord Advocate will be able to clarify—if possible in his winding-up speech—whether an appeal against this judgment will be lodged. The public must be protected. The last thing the electorate want is cases involving crimes of violence not being brought to justice because the court system is clogged up. It is essential that the public are protected and that persons charged with crimes of violence are brought to the courts. The Executive has an inescapable duty to put the necessary arrangements, procedures and funding in place, to secure a sufficiency in the number of Scotland's judges.

It is an indication of how restrained Parliament has become that when members have had the opportunity for the past 40 minutes to murmur about Scottish judges, not a single murmur has been heard. That might be because of fear or reticence or because not enough members are here, but it testifies to the respect in which the judiciary is held in Scotland, not simply because of its actions, but because of its long and distinguished contribution to our society.

The issues that we are discussing are not without their concerns, and I pay tribute to the speeches of Pauline McNeill and Des McNulty. There is strong public concern in Scotland that the system of judicial appointment is not transparent, democratic or fair and that it is not a system that produces—to some extent—a cross-section of Scottish society to sit in judgment. I am heartened by the remarks of the Minister for Justice this afternoon that the Executive will bring forward for consultation ideas on a new system of judicial appointments. I hope that when we have that debate in the chamber we can move Scotland forward into a more transparent and democratic era.

There was not even any criticism this afternoon when we heard the astonishing figure that a fully rigged judge costs £140,000 a year. I suspect that if a fully rigged politician cost £140,000 a year, we would be in considerable trouble. Obviously, judges are worth the pittance that they receive and I suspect that the approval of that money will go through on the nod.

Members may have noticed some behind-the

scenes activity; I am glad to see the Minister for Parliament in his place. Strong concerns have been expressed in the past 24 hours that there are difficulties in getting the timetabling of debates in the chamber correct. All members of the Parliamentary Bureau should share those concerns. The clock shows that it is only 4.25 pm. To take us to 5 o'clock, the Lord Advocate and I would have to speak for 35 minutes—the Lord Advocate is, of course, quite capable of that, although I might not be. That is a compliment to the Lord Advocate's eloquence, as I am sure he will show when eventually he is worth £140,000 a year. The reality is that we do not have a debate that will take us to 5 o'clock. I am pleased to say that the Minister for Parliament will move a business motion that will move the business of the chamber on.

The Parliamentary Bureau—I speak as a member of it—will have to reflect on this matter and ensure that the timetabling of all business meets the demands of the chamber. It was never in question that the order would be approved by the Parliament. There was never any question but that this would be a matter of consensus between the parties. We could have achieved this more promptly.

I am happy to support the increase in the number of judges in Scotland, as is my party. We look forward to it and we look forward to the high reputation of the Scottish judiciary being maintained by the new members of the bench.

I am grateful to Mike Russell for his confidence in me and in my ability to speak for as long as is necessary.

On the management of business, the Minister for Parliament is here and it is a matter for the Parliamentary Bureau. It must be difficult to judge particular issues, but the minister will speak for himself on that matter.

I welcome the support from every member who has spoken in the debate. It is a tribute to the judiciary in Scotland that all members from all parties have supported the need to give effect to the order. It is also a tribute to the judiciary in Scotland that we have had the request for the services of Lord Cullen in relation to Paddington. I accept the point made by Lord James Douglas- Hamilton and Ms Cunningham, that Lockerbie and the Lockerbie trial have put the judicial and criminal justice system on show throughout the world. I hope that at the end of the day everyone throughout the world will pay tribute to that system, which I am sure it will deserve.

Ms Cunningham and Mr Gallie suggested that more than five judges might be appointed. I regret that it is not possible to amend the order to increase the number. In any event, the order was brought after discussions with the Lord President, and he identified his need as five. It may well be, as members have mentioned, that in due course the Lord President will bring other proposals to the Executive. Until that happens, I do not think that it would be appropriate to make any additional appointments.

I accept the Lord Advocate's comments, but I am slightly disappointed. This is a draft order, and I thought that there might have been an opportunity to change it.

A significant announcement has been made today that alters the situation. If we are to get all the benefits of this Parliament that the Minister for Justice mentioned today, it would have been welcome if we could have induced a rethink.

I fully understand what Mr Gallie is saying, but the judgment will have to be studied carefully not only by me and by other ministers, but by the Lord President, to see what implications it has for the administration of justice in the supreme courts. It is possible that at some future date he will come back with further requests, but—particularly given the comments that have been made about the modest salaries that judges are being paid—it would be inappropriate for us as an Executive to ask the Parliament for more appointments than the Lord President thought were absolutely necessary.

I was somewhat surprised to hear Mr Gallie raise the issue of the alleged downgrading of charges, because this must be the first occasion on which he has done so—

No, I have raised it before.

That was supposed to be a joke. [Laughter.] What I can say is that the Crown Office and Procurator Fiscal Service consider the reports that they receive and take a decision on the basis of the evidence that is available to them. Crown counsel and the procurator fiscal decide on the appropriate charges and the appropriate courts. There is no question of any downgrading of charges or of any downgrading from one court to another because of a lack of resources.

As Jim Wallace said earlier, we intend to bring forward a consultation paper on appointments. I want to deal with the point that Des McNulty made. It will not simply be a case of our bringing forward the results of the consultation. Rather, the consultation paper will be issued and anyone who has an interest in the subject, including MSPs, the Justice and Home Affairs Committee and members of the public, will have an opportunity to make representations. After that, there will be an

opportunity for the appropriate committee—and, if need be, the entire Parliament—to consider the outcome of the consultation process.

A number of members—Roseanna Cunningham, Des McNulty, Maureen Macmillan, Cathy Jamieson, Pauline McNeill and Euan Robson—raised the issue of the gender imbalance in the present judiciary, which has only one lady member out of 27. When we appoint judges, our starting point is that only people who are properly qualified and have the requisite experience and expertise should be considered. I do not think that anyone would demur at that. However, because in recent years so many women have entered the profession, it may be that there are a number of women suitable for appointment, if they are interested.

I want to take up Maureen Macmillan's point that women are not appointed to particular posts because men are responsible for making the appointments. Some may hold that view, but since I became Lord Advocate in 1997, five women have been appointed to the shrieval bench. At present there are only 13 woman sheriffs, but five of them were appointed by me, and appointed on merit. That indicates that it is possible for men to recommend the appointment of suitably qualified women.

I will not shirk that duty. If there are suitably qualified women of ability and if they are the best people to be appointed, I will have no hesitation in making a recommendation. If the judiciary is to retain the confidence of the public, it must continue to be vigilant of the rights of the individual and it must continue to reflect and be aware of society as a whole. If it does not do that, it will lose the confidence of the public.

One way of achieving a judiciary that reflects Scottish society is to secure appointments that do that. That involves taking into account appointments from ethnic minorities. Again, we must ensure that the appointees have the necessary qualifications and the necessary ability. I am anxious to encourage members of ethnic minorities to enter the law and to seek judicial appointments after they have served the requisite statutory period. No one would be happier than me if it were possible to appoint more women and members of ethnic minorities. No doubt we will have that debate after the consultation process has ended.

Bill Aitken raised a point about the financial implications of today's debate. As Jim Wallace said, the cost of the Lockerbie trial is largely met from outwith the Scottish block, and the costs related to Paddington and the Cullen inquiry come entirely from outwith the Scottish block.

Bill Aitken also referred to delays. As far as I am aware, Scotland has the strictest time limits in the world on prosecutions. It is a tribute to our system that people are brought to justice in criminal trials much more speedily than in any other country. Those in custody have to be brought before the court within 110 days. Only in a very few exceptional cases, through no fault of ours, does that period have to be extended.

The time limit for people who are not in custody is a year. The point that Mr Aitken made was that, in some parts of Scotland, it is months before a trial is brought to fruition. However, given that Parliament, in its wisdom, decided that a year was a reasonable period, it is not unreasonable to have a period of a few months between the start of a petition and the start of a trial. I am sure that members will also appreciate that it is important to prioritise business so that those in custody are dealt with first. The consequence is that those who are not in custody tend to have to wait a bit longer.

Euan Robson mentioned retired judges. The average age of the senior judiciary is 59, and the youngest judge is 43. When we are talking about natural wastage, we are talking about the retirement of existing judges when they achieve their retirement age or decide that they want to retire, or the retirement of the judges who have already retired. When they come up against the statutory period, they have to go.

Rather ingeniously, Euan Robson introduced the closure of Duns sheriff court. I am not quite sure what that has to do with the increase in the number of senior judges, but it is the sheriff principal in the Borders who has responsibility for managing the business in his sheriffdom. He has initiated the consultation on court provision in the Borders and has made clear in his document that he has an open mind on the proposals contained in it. He will wish to consider representations received and it will be a little time before he puts any proposals to Scottish ministers, who have the final responsibility for approving any closures.

It is inappropriate at this stage for me to make any detailed comment on the matter raised, but I can assure Parliament that there will be no court closures until ministers have had an opportunity to consider the overall position. I am sure that the Justice and Home Affairs Committee will wish to consider that at some point.

In relation to the comments made by Lord James Douglas-Hamilton, all of us have our own memories of Lockerbie. I was not involved on the night in question, but as members may know, I was much involved in the fatal accident inquiry. Since becoming Lord Advocate, I have been greatly involved in the whole question of the Lockerbie investigation and have had many opportunities to meet the families of the victims.

On the point raised about suspending temporary sheriffs for all new cases, it is fair to say that the question of the action to be taken following the decision this morning has been decided on the basis of prudence. The first thing that has been done is to take the advice of the court and ensure that temporary sheriffs do not continue to hear cases, lest those cases be prejudiced. The position in relation to new cases is in the same category. It would be unwise to encourage new cases to be called before temporary sheriffs, in case those cases were prejudiced. In relation to civil cases, it is always open to parties themselves to agree that they will be heard by a temporary sheriff. If parties agree, that may be an option which we would have to consider. It is too early to do that today. The emphasis must be on compliance with the European convention on human rights and ensuring that justice is done in all cases.

The final point raised by Lord James Douglas- Hamilton was about the appeal against the judgment. As Jim Wallace said, leave to appeal was sought today, and was granted on the basis that this was an important constitutional issue. Having said that, it would be unwise and inappropriate for me to announce that I was intending to appeal until I have fully considered the implications of the judgment. I trust that members will accept that I should not make any further statement on that until the judgment has been fully considered and digested and a decision taken as to whether there is a proper ground for an appeal to the Privy Council.

One final matter that I must deal with is the question raised by Mr Gallie on the use of sheriffs as temporary judges. The position in relation to temporary judges in the supreme courts is that one of them is a sheriff principal and all the others, except two, are permanent sheriffs. The Lord President will consider the implications of the judgment for the continued use of temporary judges. In any event, it may be that some of the sheriffs will be required to be recalled to the sheriff courts to deal with business. Those are all issues that must be addressed.

As Jim Wallace said, contingency plans have been drawn up by the various sheriffs principal to ensure that the cases which deserve priority, such as those involving people in custody and those involving children or vulnerable witnesses, will be given it. I realise that everyone thinks that their own case is most important. Other business will be worked around those cases.

That concludes the debate on the order. I am grateful to the Lord Advocate. One can always tell those who are trained by being paid by the minute. [Laughter.]

Presiding Officer, I seek your agreement to move a parliamentary business motion without notice.

I am minded to accept a motion without notice in order to avoid a gap in our proceedings. Are we all agreed?

Members indicated agreement.

I intend to move that decision time be brought forward to 4.48 pm. The reason for the motion is that there is significant interest in tonight's members' debate and any additional time that we can add to it will be most helpful.

I would like to take a few moments to address Mike Russell's earlier comments. Mike is a valued colleague on the Parliamentary Bureau, but it is important to put this motion into context: we are only 12 minutes from our normal decision time at five o'clock. We are, however, always keen to take Mike's thoughts and suggestions on board and we will do that.

Before I move the motion, may I say that I think that the Lord Advocate is worth every penny. [Laughter.]

I move,

That the Parliament agrees that decision time be brought forward to 4.48 pm.

The question is, that decision time be brought forward to 4.48 pm.

Motion agreed to.