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CHAPTER 3 THE LORD PRESIDENT
What was proposed?
3.1 In Chapter 3 of the consultation paper we introduced proposals to bring the judiciary under a single judicial head with overall responsibility for the management of the business in all courts, and for the training, welfare, deployment and conduct of the judiciary. We proposed that the Lord President of the Court of Session should be the head of the judiciary.
3.2 We said in the consultation paper why we believed those proposals would strengthen the independence of the judiciary, and lead to improvements in the system that would enhance public confidence in the judiciary and the justice system. A core strength was the opportunity the new structure would give the head of the judiciary to develop arrangements in the areas outlined, many of which are unregulated, or currently involve a degree of Executive involvement. We recognised that the Lord President would require powers to fulfil the new functions. He or she would also require additional support. We sought views on how this might be provided.
What views were expressed in the consultation?
3.3 There was considerable support for conferring the status of head of the judiciary upon the Lord President. However, there were concerns about the additional responsibility this would place on an already burdensome office, and that the nature of the office could be changed by those responsibilities from one that was essentially judicial, to one that was predominantly administrative.
3.4 There was a range of views about whether the Lord President should have statutory responsibilities for the disposal of court business. Many were cautious about this, commenting on the need to balance the responsibilities being proposed with the provision of adequate resources over which the Lord President had control. The current Lord President and the judges considered that it was of fundamental importance to resolve the question of the future governance of the Court Service before considering in detail the nature of the responsibilities that should fall on the Lord President, and what arrangements should be put in place to fulfil them. Others expressed a similar view. However, overall it was accepted that, if formally recognised as head of the judiciary, the Lord President should have some responsibility for these matters. Whether that should be a direct responsibility or a duty of oversight should remain for discussion.
3.5 Proposals to give the Lord President overall responsibility for judicial training and welfare were welcomed, and there was support for the proposal to transfer deployment from the Executive to the Lord President. While there were some anxieties about a power to transfer compulsorily in the interests of the administration of justice, those members of the judiciary with experience of administering the system broadly supported such a power. There was also support for giving the Lord President responsibility for dealing with issues of conduct.
3.6 There was little enthusiasm for any formal involvement of the Lord President in the strategic work of the Executive, and a range of views on how the judiciary should be involved in the management of the Court Service. There was a strong body of opinion that before detailed arrangements could be examined, the fundamental relationship between the judiciary, the Executive and the Court Service had to be considered, and a structure put in place that would give the judiciary the resources to fulfil the duties required of it free from Executive influence.
How do we intend to proceed?
3.7 Creating a single judicial office with overall responsibility for the courts and for the management of the judiciary is central to these reforms. We are therefore working with the judiciary on what changes should be made to the way the Court Service is governed to provide an appropriate structure that enables the Lord President to fulfil the new responsibilities proposed for that office. We say more about this in Chapter 12.
3.8 As discussions with the judiciary are continuing, it would be premature to set down anything other than broad descriptions of what, at this time, seem to us to be the main areas requiring legislation. These represent a refinement of our original proposals, taking account of what has been said in the responses to the consultation. Some points raised in the responses will require to be discussed with the Lord President before proposals can be formulated. And we may need to make changes in light of further comment received in response to this paper.
3.9 The matters to be provided for in a draft Bill would be these.
1. The Lord President of the Court of Session would become Head of the Judiciary in Scotland. The person appointed Lord President would, on taking up that appointment, assume the role of Head of the Judiciary.
2. The Head of the Judiciary would have statutory responsibility for:
a) representing the views of the judiciary to Parliament and to Ministers;
b) laying before the Scottish Parliament written representations on matters that appear to him or her to be matters of importance relating to the judiciary or otherwise to the administration of justice;
c) maintaining arrangements to secure the efficient disposal of business in the courts of Scotland;
d) maintaining appropriate arrangements for the deployment of the judiciary;
e) maintaining appropriate arrangements for the welfare, training and guidance of the judiciary;
f) exercising disciplinary powers over members of the judiciary, and maintaining a scheme for dealing with issues of conduct that arise, including a power to make rules to regulate the procedure of such a scheme.
3.10 The following paragraphs provide more information about some of these proposals.
Written representations to the Scottish Parliament
3.11 This complements the provision in section 5 of the Constitutional Reform Act 2005 that allows the Lord President to make written representations to the United Kingdom Parliament.
Maintaining arrangements for the efficient disposal of business
3.12 We believe a judicial structure in which there is a single judicial head is a powerful arrangement for developing and improving the justice system. A responsibility to maintain arrangements that would secure the efficient disposal of business in the courts would give that element of judicial leadership and allow flexibility in how the responsibility was discharged. We would not wish to interfere with that flexibility and we do not propose therefore to give any part of the system a prior claim to resources. Nor do we do propose to take from sheriffs principal their current responsibility for securing the speedy and efficient disposal of business in their respective sheriffdoms. 6 However we would need to make the necessary amendments to the Sheriff Courts (Scotland) Act 1971 to recognise the Lord President's overall responsibility. We would also need to reflect the intention to reduce Ministerial involvement in judicial administration by making appropriate amendments to the 1971 Act.
Deployment of the judiciary
3.13 The scheme in the 1971 Act would be amended to reduce the involvement of Ministers in the deployment of sheriffs. At present Ministers have power, after consulting the Lord President, to direct that a sheriff shall cease to hold the office of sheriff of one sheriffdom and become a sheriff of another sheriffdom. This power is in practice used only to facilitate voluntary transfers; nevertheless we consider this arrangement does not sit easily with the principles of judicial independence and we would propose to transfer the power to the Lord President. We would retain a residual power to re-deploy a sheriff where the business of the court had reduced to such a level that the full time attendance of that sheriff was no longer required. Such re-deployment would take place only after consultation with the Lord President and the sheriff principal.
3.14 There are also powers currently to require a sheriff to sit in another court for a temporary period. These are intended to deal with occasions when a sheriff is absent, there is a vacancy or the administration of justice in that court might otherwise be delayed. These powers should be available to the Lord President if he or she is to have responsibility for the courts, and we would transfer these. We would also propose to give the Lord President a power to deploy a sheriff on a compulsory basis.
Training, welfare, guidance and conduct
3.15 Effective training for our judges and sheriffs is a key element of the arrangements that need to be in place for the judiciary, and it is right therefore that the Lord President, as Head of the Judiciary, should have responsibility for overseeing the development and provision of judicial training. We would therefore give the Lord President an overall power to direct the activities of the Judicial Studies Committee. We do not propose to make the Committee a statutory body. We would also provide power to enable the Lord President to make such arrangements as he or she considered appropriate under the general heading of welfare (which would not be defined) and to issue guidance to the judiciary on such matters as he or she considered appropriate. Judicial conduct is discussed in Chapter 8.
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