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CHAPTER 2 THE INDEPENDENCE OF THE JUDICIARY
What was proposed?
2.1 In Chapter 2 of the consultation paper we stated our commitment to the independence of the judiciary, and our intention to strengthen that commitment with a statutory guarantee. We noted that such a guarantee was now part of the law in the rest of the United Kingdom. 4 We invited views on what form of commitment would be appropriate in Scotland.
What views were expressed in the consultation?
2.2 Some respondents welcomed our proposal; others questioned whether a statutory statement of what is already a recognised constitutional principle would add anything of value. The Lord President and the judges pointed out that a statutory provision by itself was not an effective guarantee; practical measures were also required. They considered that introducing a predominant role for the judiciary in the strategic management of the Scottish Court Service was necessary to achieve the institutional independence of the judiciary which would protect the independence of individual judges. Other respondents also commented that providing the judiciary with the resources to carry out their functions independently of the Executive was an essential element of independence. In Chapter 12 we describe where we have reached in the discussions with the judiciary on the arrangements for managing the Court Service.
2.3 Notwithstanding the hesitancy about what a statutory guarantee would add to the present arrangements, there was still a feeling that it would not be right if Scotland were to be the only part of the United Kingdom in which the Executive was not fully bound by such a statutory guarantee. The balance of view overall favoured some provision being made.
How do we intend to proceed?
2.4 We have included a statutory guarantee as section 1 of the draft Bill. 5 This pre-eminent position reflects the fundamental importance of this principle, and distils into statute what has long been a matter of convention and common law. It is a powerful and obvious reminder to those in the executive branch of government, as well as elsewhere, of the constitutional significance of judicial independence. It emphasises to all concerned the need to bear this principle in mind at all times. The provision is consistent with the similar provisions in the other parts of the United Kingdom, to the extent that is appropriate.
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