Equalities, Human Rights and Civil Justice Committee

Meeting date: Tuesday, February 8, 2022

Official Report 554KB pdf

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Subordinate Legislation

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Maximum Number of Judges (Scotland) Order 2022 [Draft]

Good morning, and welcome to the fourth meeting in session 6 of the Equalities, Human Rights and Civil Justice Committee. We have received no apologies for today’s meeting.

Fulton MacGregor and Karen Adam are joining us virtually today, and Richard Leonard is also joining us. We welcome Richard to the meeting.

Our first agenda item is consideration of an affirmative instrument. I welcome to the meeting Keith Brown, Cabinet Secretary for Justice and Veterans, and his Scottish Government officials: Ryan McRobert, head of courts and tribunals, and Jo-anne Tinto, a solicitor in the legal directorate, who are joining us virtually. I refer members to paper 1, and I ask the cabinet secretary to speak to the draft order.

The maximum number of judges is set out in section 1(1) of the Court of Session Act 1988. The draft order in council will increase the maximum number of judges of the Court of Session by one, from 35 to 36. Judges of the Court of Session also sit as judges of the High Court of Justiciary. An increase in the number of judges of the Court of Session has been precipitated by the recent appointment of Lady Poole as chair of the Covid-19 inquiry. Lady Poole is an outer house judge of the Court of Session on secondment to the inquiry. During the secondment, she will not be available to sit in court. However, she remains a judge for the purposes of the statutory limit in section 1(1) of the 1988 act.

As that inquiry is expected to last for several years, the Lord President requested an additional judge to meet the demands of the business in the Court of Session and the High Court. The appointment of Lady Poole to chair the Covid-19 inquiry, coupled with the current high level of court business, means that the appointment of a further judge will provide additional judicial resource during these challenging times.

The Lord President does not consider that it is possible to appoint a further series of temporary judges drawn from the shrieval bench for this period of time, as that would place additional pressure on the sheriff courts and would therefore not secure the most efficient disposal of court business.

I am happy to answer any questions from members.

Thank you, cabinet secretary. Pam Duncan-Glancy has a couple of questions.

Good morning to you, minister, and to your officials. Thank you for setting that out.

Have you taken account of the numbers in the backlog during the Covid-19 period when considering the number of judges that might be required? Do you think that the proposed number of judges is enough? Have you considered the Lord President’s suggestion that there should be primary legislation to base the maximum number of judges on the number of full-time equivalent judges?

The answer to the second point is no, I am not sure that we have considered that suggestion from the Lord President.

However, the draft order before us comes at the request of the Lord President, and that is partly for the reasons that you mention. We are keen to tackle the backlog, and that is perhaps why we have gone beyond the previous limit of 35, which was increased from 34 in 2016. We do not want the business to deal with the backlog to slow down, and that is why we want to appoint a further judge.

We have considered other things that may help. Sheriffs are sometimes elevated, but that would put more pressure on the sheriff courts. We are trying to balance that. The measure increases capacity for the Court of Session at a time when it would otherwise reduce because of the appointment of Lady Poole to the inquiry.

I am pretty sure that the Lord President said to me in his letter that the measure was to do with the backlog, too. That is being taken into account.

There are no further questions for the cabinet secretary, so we move to item 2, which is the formal business in relation to the Scottish statutory instrument. We will now consider the motion for approval of the affirmative instrument.

Motion moved,

That the Equalities, Human Rights and Civil Justice Committee recommends that the Maximum Number of Judges (Scotland) Order 2022 be approved.—[Keith Brown]

Motion agreed to.

I invite the committee to delegate to me the publication of a short factual report on our deliberations on the affirmative SSI that we have considered today. Is that agreed?

Members indicated agreement.

Brilliant. That concludes consideration of the affirmative instrument.

Obviously, the cabinet secretary is staying with us for the next item. The ministers’ officials online are free to leave.