Scottish Civil Justice Council and Criminal Legal Assistance Bill

The Scottish Civil Justice Council and Criminal Legal Assistance Bill is the first in a series of legislative measures to be taken forward under the Scottish Government’s four-year Making Justice Work Programme.

Making Justice Work draws together a range of reforms across criminal, civil and tribunal justice.  The goal is to ensure the justice system better meets the needs of those it serves - the people of Scotland – through a series of improvements to make it fairer, more accessible, cost-effective and efficient.

The Bill takes forward two separate policies identified as Scottish Government priorities:

  • The establishment of a Scottish Civil Justice Council to replace the Court of Session Rules Council and Sheriff Court Rules Council. The new Council will also have a wider policy role to advise and make recommendations on improving the civil justice system in Scotland.
  • Introducing financial contributions in criminal legal aid to ensure those who are able to pay towards the cost of their defence do so and making changes to financial eligibility in criminal legal assistance to ensure alignment of eligibility between the relevant criminal legal assistance aid types.

The Bill and its accompanying documents are available on the Scottish Parliament website.

Scottish Civil Justice Council

The establishment of a single rules council was one of the recommendations of The Scottish Civil Courts Review. Many of The Review recommendatiosn will need new rules of court.  To prepare those, the review recommended a new, single body shoudl be established with oversight of the entire civil justice system.

The Scottish Government agrees.  This Bill will therefore establish a new body, the Scottish Civil Justice Council, which will replace the Court of Session and Sheriff Court Rules Councils. 

The Bill is the first legislative step in the most significant programme of civil courts reform in Scotland for a century. The Scottish Government will consult on proposals for civil courts reform toward the end of this year. 

In line with the Scottish Government’s phased approach under Making Justice Work, the Bill will establish the Scottish Civil Justice Council before later court reform legislation is introduced – in order that the Council can be up and running and able to consider, then help to implement, that later legislation as soon as possible.

The Review envisaged the new Council should ultimately do more than draft rules of court to implement the Review’s recommendations.  The Bill is intended to give effect to that vision: giving the Council a wider function of contributing to the ongoing improvement of the civil justice system, making it more adaptive and fostering a culture of continuous improvement.  Therefore, once implementation of the Review’s court reform recommendations is complete, the intention is that the Council will take on the new functions of keeping the civil justice system under review and advising and making recommendations for future change. 

Functions

The Council will have the following functions:

  • to keep the civil justice system under review;
  • to review the practice and procedure followed in the Court of Session and in civil proceedings in the sheriff court;
  • to prepare draft civil procedure rules and submit them to the Court of Session;
  • to provide advice and make recommendations to the Lord President on the development of and changes to the civil justice system; and
  • to provide advice on any matter relating to the civil justice system as the Lord President may request.

Principles

In carrying out its functions, the Council must have regard to any guidance issued by the Lord President, and to the following principles:

  • the civil justice system should be fair, accessible and efficient;
  • rules relating to practice and procedure should be as clear and easy to understand as possible;
  • practice and procedure in the civil courts should be as similar as possible, where appropriate; and
  • alternative methods of dispute resolution should be promoted where appropriate.

Powers

The Council will be able to take such action as it considers necessary or desirable to carry out its functions.  This includes being able to:

  • have regard to proposals for reform which may affect the civil justice system;
  • prepare draft civil procedure rules, before the law changes, to allow the Court of Session to make rules on the changes proposed to the civil justice system (the Court will only make the rules once the law changes, however);
  • consult such persons as it considers appropriate; and co-operate with, and seek the assistance and advice of, such persons or bodies as it considers appropriate.

In performing its functions, the Council will be able to establish sub-committees and ad hoc groups as necessary.

Reporting Arrangements

The Council is to prepare an annual report and business programme and lay copies before the Scottish Parliament, as soon after 31 March as is reasonably practicable.  The report must include a summary of any recommendations made.

Membership

 

Membership will be between 14 and 20 members.  Scottish Ministers will have the power to vary the numbers of members, but not the categories themselves.

Appointments are for 3 years (except for office holder members and the Scottish Ministers’ appointee).  Members are eligible to be reappointed.

The Lord President currently chairs the Court of Session Rules Council and may chair the new Council or designate a judge of the Court of Session member as chair.  Members are to elect a judicial member as deputy chair.

 

Member(s)

Appointed by

Appointment Procedure

Tenure

Eligible for payment?

The Lord President

(Lord Justice Clerk may deputise)

n/a

n/a*

n/a

No

The Chief Executive of the Scottish Court Service

(may nominate a representative from SCS staff)

n/a

n/a*

n/a

No

The Chief Executive of the Scottish Legal Aid Board (may nominate a representative from SLAB staff)

n/a

n/a*

n/a

No

At least 4 Members of the judiciary, from both the Court of Session and the Sheriff court, including at least one judge of the Court of Session and at least one sheriff or sheriff principal. 

Lord President

None

3 years, unless replaced or removed by the Lord President

No

At least 2 practising advocates

Lord President, after consulting Faculty of Advocates

Established by Lord President

3 years

Yes

At least 2 practising solicitors

Lord President, after consulting the Law Society of Scotland

Established by Lord President

3 years

Yes

At least 2 consumer representative members, who between them appear to the Lord President to have:

  • experience and knowledge of consumer affairs,
  • knowledge of the non-commercial legal advice sector, and
  • an awareness of the interests of litigants in the civil courts.

Lord President after consultation with Scottish Ministers

Established by the Lord President

3 years

Yes

 

1 member of SG staff (or a nominated representative)

Scottish Ministers

None

Until Scottish Ministers appoint a replacement

No

 

A maximum of 6 other persons

Lord President, after consultation with Scottish Ministers

Established by the Lord President

3 years

Yes, if not Scottish Administration or SLAB staff

 

Consultation

In September 2011, the Scottish Government therefore consulted on proposals for a new body, the Scottish Civil Justice Council, to replace the existing Court of Session and Sheriff Court Rules Councils and with a wider policy function of contributing to the ongoing improvement of the civil justice system.

In addition to the responses published below, the Scottish Legal Complaints Commission submitted a confidential response to the consultation.  

Consultation responses

Downloadable documents:

Title:Scottish Civil Justice Council
Description:Information about the creation of a Scottish Civil Justice Council
File:Association of Personal Injury Lawyers [PDF, 59.8 kb: 01 Apr 2012]
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File:Associated Society of Locomotive Engineers and Firemen [PDF, 30.1 kb: 01 Apr 2012]
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File:Association of British Insurers [PDF, 77.1 kb: 01 Apr 2012]
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File:AVIVA [PDF, 152.5 kb: 01 Apr 2012]
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File:Capability Scotland [PDF, 188.6 kb: 01 Apr 2012]
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File:Citizens Advice Scotland [PDF, 85.4 kb: 01 Apr 2012]
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File:C Reid [PDF, 76.8 kb: 01 Apr 2012]
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File:Consumer Focus Scotland [PDF, 264.0 kb: 01 Apr 2012]
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File:Forum of Insurance Lawyers [PDF, 159.5 kb: 01 Apr 2012]
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File:G Anderson [PDF, 84.9 kb: 01 Apr 2012]
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File:D Gallant [PDF, 31.0 kb: 01 Apr 2012]
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File:Royal Fculty of Procurators in Glasgow [PDF, 78.9 kb: 01 Apr 2012]
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File:Scottish Court Service [PDF, 49.1 kb: 01 Apr 2012]
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File:Sheriffs' Association [PDF, 72.2 kb: 01 Apr 2012]
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File:South Lanarkshire Coucil [PDF, 21.8 kb: 01 Apr 2012]
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File:Which? [PDF, 83.9 kb: 01 Apr 2012]
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File:Upper Tribunal (Administrative Appeals Chamber sitting in Scotland) [PDF, 75.1 kb: 01 Apr 2012]
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File:Scottish Tades Union Congress [PDF, 56.7 kb: 01 Apr 2012]
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File:Simpson and Marwick [PDF, 556.6 kb: 01 Apr 2012]
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File:Sheriffs Principal [PDF, 11.1 kb: 01 Apr 2012]
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File:Sheriff Court Rules Council [PDF, 186.2 kb: 01 Apr 2012]
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File:Senators of the College of Justice [PDF, 84.5 kb: 01 Apr 2012]
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File:Scottish Legal Aid Board [PDF, 43.5 kb: 01 Apr 2012]
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File:Scottish Committee of the Administrative Justice and Tribunals Council [PDF, 87.2 kb: 01 Apr 2012]
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File:Scottish Arbitration Centre [PDF, 57.4 kb: 01 Apr 2012]
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File:Scottish Legal Action Group [PDF, 49.3 kb: 01 Apr 2012]
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File:QBE Insurance Europe [PDF, 150.6 kb: 01 Apr 2012]
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File:P Foreman [PDF, 36.3 kb: 01 Apr 2012]
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File:North Lanarkshire Council [PDF, 36.3 kb: 01 Apr 2012]
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File:Lord President [PDF, 135.0 kb: 01 Apr 2012]
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File:Law Society of Scotland [PDF, 77.3 kb: 01 Apr 2012]
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File:Irwin Mitchell Scotland LLP [PDF, 242.1 kb: 01 Apr 2012]
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File:Friends of the Earth Scotland [PDF, 172.8 kb: 01 Apr 2012]
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File:Forum of Scottish Claims Managers [PDF, 80.2 kb: 01 Apr 2012]
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File:Faculty of Advocates [PDF, 535.3 kb: 01 Apr 2012]
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File:Families Need Fathers Scotland [PDF, 52.4 kb: 01 Apr 2012]
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File:Core Solutions Group [PDF, 83.0 kb: 01 Apr 2012]
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File:Esure [PDF, 76.2 kb: 01 Apr 2012]
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