Address on the Opening of the Legal Year

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ADDRESS ON THE OPENING OF THE LEGAL YEAR

27 SEPTEMBER 2011

My Lords and my Ladies, Lord Advocate, Dean of Faculty, Advocate General, Solicitor General, Distinguished Guests, Ladies and Gentlemen –

This is the third occasion on which the court has convened in a ceremony such as this to mark the opening of the new session of the court. It is also the last over which I shall preside as Lord President. This is not, however, the occasion for valedictory remarks but for reflecting on the year which has just past and anticipating the years ahead.

We are now, as you see, restored to Court No.1. Work on the other courts designed and constructed under the superintendence of Robert Reid in the 1830s is expected to be completed within the next fortnight. That restoration is after a period of exile while these courts were refurbished under a contract let and supervised by the Scottish Court Service. It is very common in this day and age to criticise – sometimes with good reason – public works contracts. But the work on these courts (PhaseII of the Parliament House Redevelopment) has been an outstanding success. It has been completed on cost and well ahead of time. The quality of the work is first class. I congratulate the contractor (Interserve) and all the staff of the Court Service responsible for contractual supervision for their excellent efforts in that regard. The next stage is PhaseIII (the refurbishment of the court rooms which lie to the south of Parliament Hall). We have just learned that the allocation of capital finance from the Scottish Government will be sufficient, though barely sufficient, for that work to be undertaken. It is right that that work should proceed. Once completed, it will allow all the business of the Court of Session to be carried out within Parliament House in court rooms fit for modern purpose. It has long been my hope that the appellate functions of the High Court of Justiciary should in due course be returned to Parliament House from their exile in the Lawnmarket building. That remains a prospect – by a redevelopment of lower floors south of Parliament Hall where there is room to expand – but not an immediate prospect, given the current and foreseeable constraints on public finance. But I hope that, while no longer in office, I shall at some stage see both of the Supreme Courts of Scotland operating from their natural home in the Parliament House complex.

Over the last twelve months the members of the Scottish Court Service have been working to set the strategic direction of the now judicially led Service over the coming years to 2015. This culminated in the publication of its Corporate Plan in April (available through all good browsers on the SCS website). The Service could have wished for a more generous financial background against which to commence its statutory responsibilities and to chart a course for the new organisation.

The realities of the effect of reductions and funding across the justice system are now reasonably clear. The Service has had to accept a reduction in its revenue budget for 2011/12 of 5% and a halving of its capital budget. The budgets for future years have been announced. The revenue budget is expected to be reduced by a further 6% over the following three years, meaning that by 2014/15 that budget will have reduced by 11% or £8million in cash terms. When one takes into account the effect of inevitable inflationary pressures over the period, it is estimated that this will amount to a reduction of at least 20% in real terms. The capital budget is set to reduce from £10.4million in 2011/12 to £4million in 2014/15 in cash terms (£3.7million in real terms).

I have, as Chairing member of the Scottish Court Service, said thatI would not seek to absolve the Service from playing its part in assisting the control of public expenditure in Scotland. I have, however, emphasised to Scottish Ministers the need for an appropriate balance in the funding of the different organisations within the justice system to allow the administration of justice to continue to be undertaken in a timeous and effective way. It is clear that the Service cannot alone achieve the savings which need to be made to its budget. It sits almost at the end of the justice process (with only the custodial and probation services beyond it). Simply reducing the Service’s capacity to handle the flow of cases would led to longer delays. What is needed, particularly in the criminal jurisdiction, is a readiness to work differently and to work constructively to manage the demands on our courts.

I am glad to say that I do detect that this appreciation is shared among the various justice organisations. I was particularly heartened by the event held early this year at which the Boards of the Scottish Court Service, the Crown Office and Procurator Fiscal Service and the Scottish Legal Aid Board met and received presentations from the three Chief Executives. There are ways in which each can assist the others to ensure an efficient and fair disposal of cases that are brought to the courts. Some initiatives may benefit one organisation more than another. The Scottish Court Service has not been slow to help other organisations achieve savings, and the Service expects that to be reciprocated. The Scottish Government has established a programme of work under the title Making Justice Work, which seeks to achieve collaborative effort in providing a better justice system. This ought to enable links between action in one part of the system and effects in another to be identified and managed appropriately.

Last year I spoke about the corrosive effect on the justice system of “churn”: the cases which do not proceed on their allotted day and require to be adjourned. I reiterate today that I find it unacceptable that cases do not proceed on the day allotted to them – unless there are exceptional and wholly justified reasons for adjournment. Those who appear ill-prepared to proceed, or who have be unable to ensure attendance of witnesses, should expect close questioning from the bench on why that is so. Churn is, as I said last year, a waste of taxpayers’ money and is inimical to the proper administration of justice. In that regard I was therefore particularly pleased to hear about the efforts being made by the Crown and the Police to address this problem. For example, efforts have been made in a number of courts to see whether different approaches to encouraging witnesses to attend might be successful. This has included sending text messages to witnesses the day before the trial and police officers on occasion positively seeking out witnesses who have failed to attend and bringing them to court. In the summary courts the Crown is taking active steps to secure the early resolution of cases – including discussing issues with the defence at an earlier stage and focussing on the cases which can only be resolved by trial. I shall be interested to learn how this initiative fares.

A major challenge which faces the judiciary in the coming years will be how it responds to the consequences of tightening budgets. But whatever these budgets may be, our duty, individually and collectively, to do justice in our courts can never be permitted to be compromised. But we may be able to discharge that duty on restrained budgets by adopting measures which lead to greater efficiencies.

There have been in the last year marked improvements in the efficiency with which the Court of Session and the High Court of Justiciary process their respective businesses. The first tranche of Lord Penrose’s reforms to Inner House procedure has been in operation over that period. These reforms have produced marked reductions in the waiting times for cases to be heard and in the overall time to dispose of them. The final tranche of these reforms (that relating generally to statutory appeals) comes into force today and I would expect further improvements as a result. The new arrangements for hearing and disposing of statutory appeals in immigration and asylum cases (initiated by Lord Reed) have been a marked success. Disposal of these cases by a dedicated group of appellate judges has resulted in efficient disposal with consistent treatment, which in turn has allowed professional advisers to give more confident advice and reduce the number of cases which require to be heard. In the Outer House the volume of judicial review petitions concerned with immigration and asylum cases continues to be concerning; but steps are being taken by Lord Hodge, the Administrative Judge for Outer House business, to address this problem. There is a prospect that we can make real progress in this regard. Judicial management of complex reparation cases (including clinical negligence cases) is expected to result in their more efficient disposal. Similar improvements in relation to intellectual property cases are in hand. As to criminal business, there has been a very marked improvement in the efficiency with which criminal appeals are managed with real reductions in waiting times. In the trial court there has been a reduction in the number of court sitting days with a certain amount of doubling of trial diets, with consequent benefits to efficiency. Preliminary hearings still present a problem but this is being addressed. A number of proposals for reform are shortly to be brought forward.

I should wish to take this opportunity to pay tribute to the work of our four Administrative Judges, Lords Reed, Carloway, Hodge and Bracadale, which has allowed us to make significant strides towards optimal procedural arrangements.

I should also mention judicial discipline. The new rules in that regard – applicable across the whole range of judicial office holders in Scotland – came into operation in February of this year. Despite disquiet expressed by some consultees at the rules when proposed, the system seems so far to have worked well.

Last year at this time I recited a passage from Lord Cockburn’s Memorials concerning the drinking habits, in his day, of the members of the bench. To secure a balance I thought that this year something about the drinking habits of the bar might be apt.

In September 1828 Cockburn visited Sir Walter Scott at Abbotsford. While there, Scott recounted to him an incident which had occurred shortly after Scott had been admitted to the Faculty of Advocates in 1792. The other dramatis personae were George Cranstoun, later a distinguished Dean of Faculty and judge, another young advocate (William Erskine) and a Selkirk writer – as solicitors in Scotland were then called. Cockburn wrote:

“I was much amused by his account of an early anticipation of Cranstoun’s professional success. Within a few weeks after he, Scott, and William Erskine had put on the gown, being in Selkirkshire, they were all invited to dinner by an old drunken Selkirk writer, who had – what was worth three young advocates’ attention – a great deal of bad business. Cranstoun, who was never any thing at a debauch, was driven off the field, with a squeamish stomach and a woful countenance, shamefully early. Erskine, always ambitious, adhered to the bowl somewhat longer; but Scott who, as he told us, ‘was at home with the hills and the whisky punch,’ not only triumphed over these two, but very nearly over the landlord. As they were mounting their horses to ride home, the entertainer let the other two go without speaking to them; but he embraced Scott, assuring him that he would rise high, ‘And I’ll tell ye what, Maister Walter – that lad Cranstoun may get to the tap o’ the bar if he can; but tak ma word for’t – it’s no be by drinking.’”

I turn now to welcome those who have recently been appointed as Queen’s Counsel. I publicly congratulate each of you on the attainment of that distinguished rank. I enjoin you to do all you can to maintain and promote the honour of your respective professions. I am sure that you will do all that you can to assist the court in its work. It is with pleasure that I now introduce to your Lordships the ten new Queen’s Counsel, nine of whom have been or are members of Faculty and one of whom is a solicitor advocate.

• Sir Angus McFarlane McLeod Grossart
• William Dunlop
• Eugene Creally
• Keith Douglas Stewart
• Simon Geoffrey Collins
• Kenneth John Campbell
• Mark Stanley Hunter Lindsay
• Lorna Allison Drummond
• John Robert Anderson Hamilton
• John Dominic Scott

I now declare the Legal Year 2011/12 open. Their Lordships will now proceed to the High Kirk of StGiles.