Lord Uist: Shocking provisions in new justice bill must be removed
Roderick Macdonald, Lord Uist, warns that the Scottish government’s new justice bill features two provisions which are “constitutionally repugnant” and must be removed.
On 26 April 2023 the Scottish government introduced into the Scottish Parliament the Victims, Witnesses and Justice Reform (Scotland) Bill, accompanied by a policy memorandum extending to 136 pages. In these comments I wish to focus on only two provisions of the bill, the profound significance of which seems so far to have been overlooked.
Part 5 of the bill establishes the Sexual Offences Court. Clause 40(1) provides that the Lord Justice General may appoint persons holding a relevant judicial office also as Judges of the Sexual Offences Court. Clause 40(10) provides that a “relevant judicial office” means Lord Commissioner of Justiciary, temporary judge, sheriff principal or sheriff. Clause 40(7) provides that the Lord Justice General may remove a judge of the Sexual Offences Court from office. Clause 40(9) provides that removal from the office of judge of the Sexual Offences Court does not affect a person’s appointment to the relevant judicial office. Clause 41 provides for the appointment of the president (if the Lord Justice General is not himself the president) and vice president of the Sexual Offences Court by the Lord Justice General. Clause 41(7) provides that the Lord Justice General may at any time remove the president or vice president from office. Accordingly, the Lord Justice General is to be given the power to remove the president, vice president or any judge of the Sexual Offences Court from office for any or no reason and without any prior procedure.
As far as I am aware this is the first time that one judge will have the power to dismiss another judge from office.
These provisions, which fall to be contrasted with the elaborate provisions for the removal from office of a judge contained in section 95 of the Scotland Act 1998, constitute an unwarranted interference with judicial security of tenure and a contravention of Article 6 of the European Convention on Human Rights (ECHR), which provides that in the determination of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The importance of security of tenure in the context of judicial independence was emphasised in the well known case of Starrs v Ruxton; Ruxton v Starrs 1999 SCCR 1052. Lord Reed stated at p 1095B:
“There can be no doubt as to the importance of security of tenure to judicial independence: it can reasonably be said to be one of the cornerstones of judicial independence.”
At p 1095E-F his lordship went on to state as follows:
“So far as the European Convention is concerned, the importance of security of tenure is … well recognised. In Zand v Austria (1978) DR 70; Application No 7360/76, for example, the Commission stated (at paragraph 80):
‘According to the principles of the rule of law in democratic states which is the common heritage of the European countries, the irremovability of judges during their term of office, whether it be for a limited period of time or for lifetime, is a necessary corollary of their independence from the Administration and thus included in the guarantees of Article 6(1) of the Convention.’”
As the president, vice president and an ordinary judge of the Sexual Offences Court may at any time be removed from office by the Lord Justice General they have no security of tenure as judges of that court, which is therefore not an independent tribunal within the meaning of Article 6(1) of the ECHR.
The other provision upon which I wish to focus is that for the pilot of single judge rape trials contained in clauses 65 and 66 of the bill. Clause 65 provides that the Scottish ministers may by regulations provide that trials on indictment for rape or attempted rape which meet specified criteria are, for a specified period, to be conducted by the court sitting without a jury. There can be no procedural (as opposed to substantive) objection to the proposal for trials for rape or attempted rape to be conducted without a jury as the ECHR does not provide a right to trial by jury (Twomey and Cameron v United Kingdom; Callaghan v United Kingdom (2013) 57 EHRR SE15).
Clause 66(2) provides that the Scottish ministers must, as soon as reasonably practicable after the period specified in the regulations, (a) review the operation of trials conducted by virtue of these regulations, and (b) publish a report on the findings of that review. Clause 66(6) provides that the Scottish ministers must lay the report before the Scottish Parliament.
In other words, the work of the pilot courts is to be subject to review by the executive and a report of that review is to be submitted to the legislature. This amounts to politicians treating the courts as forensic laboratories in which to experiment with their policies. There is no provision in the bill itself as to what the review and the report is to cover, but the policy memorandum at paragraph 576 states that the objectives of the pilot scheme are “to assess how the process of conducting a single judge trial for rape cases is perceived by those involved in the trial process; to explore the impact of single judge trials on the effectiveness and efficiency of managing rape trials; and to consider the impact of single judge trials on outcomes”. Never before has the work of a court been subjected to review by the executive in this manner. It is reasonable to conclude from paragraph 565 of the policy memorandum that a main purpose of the review is to consider whether the work of the court has been acceptable to the executive in the percentage of convictions returned by it. A court with a limited life span working under such constraints could not in my view be considered an independent tribunal within the meaning of Article 6 of the ECHR.
The two provisions upon which I have commented above are constitutionally repugnant and constitute a serious attack upon the independence of the judiciary. It is shocking that they were ever included in the bill. Consideration should now be given to removing them from the bill. Otherwise they are likely to be held in due course to be incompatible with Article 6 of the ECHR and so to be outside the legislative competence of the Scottish Parliament under section 29(2)(d) of the Scotland Act 1998 –contrary to the statements made by the Deputy Presiding Officer and the Cabinet Secretary for Justice that the provisions of the bill would be within the legislative competence of the Scottish Parliament.