Scottish Government Response to the Report and Recommendations of the Scottish Civil Courts Review

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1. MINISTERIAL FOREWORD

Civil justice is a hallmark of all developed societies, providing for social stability, respect for the person and the necessary conditions for economic growth.

The civil courts are vital to the effective functioning of a civil justice system. They provide the architecture within which private agreements are honoured and the economy operates. They reaffirm the behaviours and standards required of a nation's private citizens, its businesses and its public bodies, including its government.

These matters are of fundamental importance to a healthy society.

Following the publication in 2007 of Civil Justice: a case for reform by the Civil Justice Advisory Group under the chairmanship of Lord Coulsfield, Cathy Jamieson MSP, then Minister for Justice, invited the Lord Justice Clerk to conduct a Review of the Scottish Civil Courts.

The remit of Lord Gill's Review was to review the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, having particular regard to:

  • the cost of litigation to parties and to the public purse;
  • the role of mediation and other methods of dispute resolution in relation to court process;
  • the development of modern methods of communication and case management; and
  • the issue of specialisation of courts or procedures, including the relationship between the civil and criminal courts.

Lord Gill was invited to make recommendations for change with a view to improving access to civil justice in Scotland, promoting the early resolution of disputes, making the best use of resources and ensuring that cases are dealt with in ways which are proportionate to the value, importance and complexity of the issues raised.

A Review Board and broader policy group were established, supported by a team of officials. Lord Gill received 40 written submissions from invited parties before issuing questions for public consultation, eliciting more than 200 responses from interested individuals and organisations.

In October 2009, Lord Gill presented me with his final report.

I thank Lord Gill and the members of his project board, Lord McEwan, Sheriff Principal James Taylor and Sheriff Mhairi Stephen, together with all the members of the broader policy group and others who also participated in the Review, either as individuals or as representatives of organisations. Their collective contributions have provided a landmark in the development of Scottish civil justice.

The diagnosis of Scotland's civil courts presented by Lord Gill's final report is too easily recognised. The current system has served us well for 100 years, but our civil courts are still based on a largely unreformed Victorian model, now sometimes characterised by unacceptable delays. The system has not kept pace with the rapid social changes of the 20 th Century and was not designed to serve a property owning, insurance reliant, rights based, socially democratic, welfare state in membership of the European Union.

Lord Gill has presented 206 recommendations for change, representing a comprehensive programme of reform. In the following pages I set out the Scottish Government's response to the recommendations and the timetable of next steps, including the work that still requires to be done before primary legislation can be introduced to the Parliament.

Lord Gill's recommendations have been broadly welcomed by the Scottish Government, by Scotland's legal community and by the Parliament. I am keen to maintain a broad consensus as we set about implementing the required changes. This will enable progress to be sustained across different sessions of the Parliament, as will be necessary with the timescales involved in fundamental change.

In taking forward the reforms, we will need to take full account of the pressure on public finances. This will significantly constrain investment in system improvements or transitional costs. But if anything, this pressure makes reform more, not less necessary. We cannot accept that the waste and inefficiency identified by Lord Gill should be a permanent feature of the civil justice system, and must be prepared to take radical steps where necessary to address them.

Lord Gill's remit was to consider the civil courts, but the reforms need to be seen in the context of the wider justice system - including criminal justice, Tribunals and other means of securing access to justice. The Scottish Government is establishing a major change programme, entitled Making Justice Work, which will co-ordinate and oversee reforms across the system.

Looking at the wider system has influenced our response to some aspects of the Review's recommendations. For example, the way in which the proposed third judicial tier should be constituted needs to be considered alongside the work of Lord Philip's group and the Administrative Justice and Tribunals Council on the organisation of Tribunals. We also await further recommendations on access to justice by the Civil Justice Advisory Group, which has been established under the chairmanship of Lord Coulsfield.

Overall, though, we believe Lord Gill is right in his diagnosis and right in his prescription. It is now for the Scottish Government, the judiciary and the Scottish Court Service to ensure that this landmark report leads to the fair, just, accessible and efficient civil justice system that Scotland deserves.

Kenny MacAskill MSP
November 2010