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CHAPTER 8 CONDUCT
What was proposed?
8.1 In Chapter 8 of the consultation paper we proposed a comprehensive scheme for dealing with issues of judicial conduct that fall short of grounds that would warrant an investigation into fitness for office. We proposed that the Lord President, in his new role as Head of the Judiciary, should have responsibility for such issues of judicial conduct. We invited comments on various aspects of the proposed scheme.
What views were expressed in the consultation?
8.2 Our proposal for a comprehensive scheme to deal with complaints about judicial conduct was not universally welcomed. There was concern that our consultation had created an impression that there was a serious problem with such complaints. This was not the case. Some considered the present arrangements to be satisfactory. Taken broadly, however, there was support for devising a more formal approach.
8.3 There was general agreement that no attempt should be made to define what might constitute inappropriate conduct, and many respondents were critical of our reference to failing to produce work. It was considered unhelpful to single out one matter, especially when in that case the failure might be caused by circumstances other than wilful misconduct.
8.4 The Lord President was seen as the ultimate discipline authority. There was support for giving the Lord President power to delegate functions, but there were mixed views on the involvement of sheriffs principal. Some doubted whether a sheriff principal investigating one of his or her sheriffs would constitute an independent tribunal. There was also concern that giving sheriffs principal such a role would undermine the relationship of trust and mutual confidence that should exist between a sheriff principal and the sheriffs. The Lord President was seen as the appropriate authority to make rules to govern the conduct scheme, although there was a body of opinion that any regulation should allow flexibility in the handling of complaints.
8.5 While the need for some process to consider a grievance about the handling of a complaint was generally accepted, views on who should conduct that review varied. There was a strong body of opinion that the reviewing function should remain within the judiciary, but this was balanced by those who favoured the involvement of an independent person.
8.6 There was almost unanimous support for providing a means for reviewing the merits of a complaint and the penalty and for giving the Lord President a power to suspend a judicial office holder, although some wished to see the circumstances when suspension could occur being limited.
How do we intend to proceed?
8.7 The proposals in the consultation paper were based on there being a single authority in conduct issues. That authority would be the Lord President in his role as Head of the Judiciary. Until a view can be taken on the proposals for unification of the judiciary, which in turn depends upon the current discussions on the governance of the Scottish Court Service, it would be premature to develop our proposals into draft legislation. However, we have refined our proposals in light of the comments received and set these out in this section. We may need to make changes to these in light of the discussions with the judiciary and any further comment in response to this paper.
8.8 We agree with the view expressed in the consultation that there is no current problem with complaints about judicial conduct. The current arrangements for dealing with such complaints that are received are, however, rather unstructured and do not always command public confidence. There is a balance to be struck. We wish to put in place a more structured process for dealing with complaints while not creating an unnecessary bureaucracy. The draft framework for a scheme which we set out below attempts to do this.
8.9 We have reflected on the opposition to our proposal that an independent person feature in the scheme to fulfil essentially an ombudsman role: that is to examine process, not to review merits. The opposition was not universal, and there was support for the involvement of an independent person, and not only from those who might be considered as representing the public users of the court system. We do not consider that the involvement of an independent person in the role we envisage would undermine the independence of the judiciary. On the contrary, we feel it would enhance public confidence in the arrangements we are proposing by removing any perception, however false that would be in fact, that a review by a judicial figure would not be independent.
8.10 Responsibility for dealing with issues of conduct for the judiciary would be conferred on the Lord President, as Head of the Judiciary. We would provide in statute only a framework of powers, leaving the Lord President to determine the detail.
8.11 No definition of what amounts to conduct falling below the standard expected of a member of the judiciary would be made. We anticipate that the required standards would be determined by the judiciary and set down in a code of conduct or judicial ethics under the authority of the Lord President or, perhaps, the Judicial Council.
8.12 The framework in the primary legislation would provide for the following.
a) The Lord President, as Head of the Judiciary, would have power to give any member of the judiciary formal advice, a formal warning or a reprimand.
b) The Lord President would be given a general power to delegate functions of the conduct scheme to other members of the judiciary as he considered appropriate.
c) The Lord President would have a general power to suspend from office any judicial office holder in circumstances where the Lord President was satisfied that such suspension was necessary to maintain public confidence in the judiciary. Suspension would continue until recalled by the Lord President. Salary would continue to be paid throughout the period of suspension.
d) The Lord President would have a general rule making power allowing him to determine the procedure to be followed in dealing with issues of judicial conduct, including:
i) declining to investigate complaints which were directed at the merits of a judicial decision, vexatious, trivial or lacking any supporting evidence;
ii) appointing other members of the judiciary to investigate any complaint and make a recommendation to him or her as to the appropriate course of action;
iii) advising the judge of the complaint and obtaining his or her response;
iv) obtaining information to determine the matter.
e) The right of the judge complained about to have the merits of a decision and the recommendation reviewed by two other judges, but only when the recommendation was that a formal warning or reprimand should be given.
f) Where the recommendation of an investigation by a single judge was that continuing fitness for office should be referred to a statutory tribunal, it would at the Lord President's discretion whether to agree to a request by the judge complained of that the matter be reviewed by two judges.
g) The right of the complainer to have an independent person review the administration of the case to ensure the set procedures had been followed. This independent person would have power to refer any case to the Lord President where there had been a failure to follow procedures. The independent reviewer would have no power to review the decision reached, or any penalty imposed.
h) Investigation of complaints would be confidential, and the outcome, while made known to the complainer, would not be the subject of any publicity except where the Lord President considered that it would be in the interests of the administration of justice for the outcome to be given some publicity.
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