NEWS

In welcoming the committee to Parliament House, The Lord President made the following remarks:

"Welcome back to the Judicial Institute, the seat of learning for our judges.  When last we met, in November 2021, the Committee was relatively newly established,[1] and the courts were still using Webex to conduct substantive business in the wake of successive Covid lockdowns.

Many improvements have been made as a result of lockdown. It forced the legal profession to innovate, to change and to adapt quickly; demonstrating that dusty old legal habits do not always have to die hard, with or without a vengeance.

My own ambition, since I became Lord Justice Clerk in 2012 and Lord President in 2015, in relation to civil justice has been twofold: to promote access to justice, by ensuring the delivery of high quality judgments within a reasonable time and at a reasonable cost to parties; and to maximise the use of technology to improve our services. I am very pleased with the technological improvements which have been made to the system in recent years. We look forward to the new challenges of the age of Artificial Intelligence. We have some resourceful plans. It seems astonishing that, until Covid, most steps of a Court of Session or sheriff court process required to be lodged in hard copy form at the court’s public counter. The lodging and intimating of court documents by email and the use of digital signatures are now the norm. These are innovations which we wish to retain.

It would be remiss of me not to mention that, throughout the Covid and the post-Covid eras, the Scottish Government and the Scottish Parliament have worked quickly to deliver the legislation that the courts needed in order to keep functioning smoothly. I am very grateful to you for that. It was the Coronavirus Acts[2] which made these technological advances possible.  That period was a notable example of the three major institutions of the state, executive, legislature and judiciary, collaborating and communicating well in order to respond to, and ultimately, solve a crisis quickly, fairly and efficiently.

The judiciary must be able carry out its function free from any external influences, pressures, inducements, threats or other forms of interference.[3] This is not an academic exercise. As is necessary in any modern democracy, the judiciary has a duty to respond to Government-sponsored consultations and to engage with the Government or with Parliament in relation to any matters which raise issues concerning the administration of justice or the rule of law. This sort of engagement, when exercised within proper bounds, is a manifestation of the principle of judicial independence. The judiciaries in several countries have been the subject of attacks on their role; in particular that of ensuring that all Governmental actions are lawful; including, in our country, being compliant with the European Convention on Human Rights and, in the case of both local and central government, being within legislative competence.

There are few, if any, interest groups who are better-placed to comment upon the state of the justice system than practising lawyers and judges. Although the advocates and solicitors may have a certain interest in particular reforms, the judges seldom have a skin in the game other than to see the system improved.  In responding to relevant Government consultations, they can help to ensure that the rule of law, the proper administration of justice and judicial independence are respected by any eventual reform.

The Government and Parliament have to be given due respect by the courts when performing their function as policy makers. Equally, the judiciary is entitled to respect for its independence in the performance, of its functions as the overseer of the legality of decision making by all courts, tribunals, governmental authorities and inquiries throughout the land. In Scotland, the judiciary has held that role since 1532. It ought not to be placed under pressure to perform its functions in a particular way. There are famous examples of this in legal history. The Stuart kings, Charles I and Charles II, were accustomed to writing to the Scottish courts to give them directions on the outcome of particular cases.  This persisted until the Claim of Right in 1689.^[4]  It is out of that history that we have emerged with what most agree is, as generality, a mature, democratic country with checks and balances that are designed to protect everyone from tyranny, from whatever source. Sometimes, in that ostensibly comfortable state, we forget how important this all is; until we see the, often rapid, degeneration of society in other parts of the world.

To give another well-known example from South of the border, in 1947, the then Lord Chancellor, Lord Jowitt, wrote to the then Lord Chief Justice of England, Lord Goddard, to express the view that the justice system had become “soft and woolly” when dealing with serious crime and to advise that it was his expectation that the courts would “not be lenient to…bandits [who] carry arms [to shoot at the police].”^[5]  However laudable a sentiment that may be, an expression by a Government to the courts on how the courts should perform their duties, is, as they say, offside. It is not allowed under our, albeit unwritten, constitution.

The corollary of judicial independence is that the other two parts of the state, the executive and the legislature are entitled to expect that the judges will not step outside of the bounds of their authority and engage in politics.^[6] The executive, that is to say the Government, whether UK, Scottish or local, determine policy.  The relevant legislature, be it Parliament or local council, turns that policy into law.  The judiciary interprets and applies that law. It should not innovate upon it nor should it seek to misinterpret it. The function of a judge is to understand what the legislature intended by the statute and to implement it.

The lines between these different roles may seem obvious, but each has the propensity to impact on the others. The dividing line is sometimes overstepped. A judicial decision can impede executive decision-making if the judge has failed to grasp properly the practical implications of their decision in, for example, a judicial review of governmental action.  Poorly thought-through executive policy can prove difficult or impossible for Parliament to turn into a rational and effective legislative format, or it may propose handing powers to the executive or the courts which rightfully belong to Parliament. Legislation can unintentionally encroach upon judicial independence or upon the effective operation of the justice system. Each branch must therefore work carefully to understand where the boundaries lie and how to maintain the balance devised by the wisdom of the ages.

That is why these visits are so valuable. They provide us with an opportunity to share ideas and information. We are grateful to you for taking the time to attend today. We hope that you will find it to be useful and helpful to you in your work.

The last time the committee visited us, you were fortunate to  be able to observe part of an appeal being heard over Webex. This concerned a particularly captivating subject – solicitors’ fees! I wanted to draw to your attention to another post-Covid development with which we are particularly proud - Court of Session Live. Our very own live streaming service started last year. It enables the public and the press to watch live and play back all appeals heard by the First and Second Division cases; that is all the significant, civil appeal hearings. Please do not be too disappointed that you are not going to have the opportunity to observe another hearing today; you can now spend your evenings on the SCTS website catching up on all of the appeal hearings that you may have missed.

It’s cheaper, and sometimes more exciting, than Netflix! Thank you."