The Scottish Government

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CHAPTER 1 INTRODUCTION

1.1 In February 2006 we published the consultation paper Strengthening Judicial Independence in a Modern Scotland ("the consultation paper"). ¹ In that paper we invited views on proposals to improve our justice system by modernising the arrangements made for the judiciary, and strengthening their role in the system. We divided our proposals into six areas:

(i) the creation of a unified judiciary presided over by a Lord President with responsibilities and powers concerning the disposal of business in both the inferior and superior courts, and the training, welfare, deployment and conduct of the judiciary;

(ii) the provision of a statutory basis for the Judicial Appointments Board;

(iii) the arrangements for the removal of judges and sheriffs;

(iv) the introduction of a scheme to deal with issues of conduct;

(v) the arrangements for retired and temporary judicial office holders;

(vi) the grounds of eligibility for appointment as a judge of the Court of Session.

1.2 These proposals had different origins. Those for a statutory appointments board reflected the commitment we gave when the current Board was set up in 2002. The proposals for the removal of judges met a need to replace transitional provisions made at the time of devolution. Others reflected informal discussions with the senior judiciary within the context of the constitutional changes taking place in England and Wales, which have now been made law: the Constitutional Reform Act 2005.

1.3 The responses to the consultation were varied. There was support for many of our proposals, but differences of view were evident. There was recognition that there is generally a good relationship between the judiciary and the Executive, and that there is no crisis in connection with the independence of the judiciary in Scotland. However, the judges of the Court of Session noted that it was important to consider from time to time the balance of powers between the various branches of government, and they welcomed our consultation as a timely opportunity to examine the present arrangements. The Lord President commented that a unique opportunity now existed for the Scottish Parliament, in a Bill arising from this consultation, to pass a law of constitutional importance for the benefit of the people of Scotland. We share this sentiment, and in this paper we explain how we are taking forward our proposals.

1.4 A summary of the responses to the consultation will be published shortly. Some consultees asked that their response be kept confidential. The non-confidential responses are available on the Scottish Executive website ² or through the Scottish Executive Library. ³

1.5 Some who responded, notably the Faculty of Advocates and the Law Society of Scotland, felt that the matters under consideration were of such importance that a more thorough and independent assessment was warranted. This view was not, however, universally held and, on balance, we have decided that an independent inquiry is not necessary. Such an inquiry would take time, and duplicate work that has already been done to establish the views of those interested. The Parliamentary process will provide in due course a rigorous and independent scrutiny of what is proposed. However, we have reflected on what has been said in the consultation and recognise that a number of the issues will benefit from an opportunity for further reflection and consideration at this time. We have therefore refined and focused our proposals and present these in this paper as a basis for further discussion and comment.

1.6 Our work has been informed by the consultation that has taken place, and we are not repeating that full consultation. Comments on specific aspects of our proposals are however welcome. These should be sent to:

John Anderson

If you would prefer to use e-mail, the address is: JudicialBillTeam@scotland.gsi.gov.uk

Please let us have any comments by 14 May 2007.

1.7 Copies of comments received will be made available to the public on request, unless respondents indicate that all or part of their response is confidential.

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