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Strengthening Judicial Independence in a Modern Scotland

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Chapter 4
Judges' Council

4.1 There is currently no standing body representative of the judiciary as a whole.

4.2 The Lord President is assisted by a Judges' Council. The Council, which has three members, has no legal authority and serves in a supporting and advisory role to the Lord President. Its functions are (a) to assist the Lord President and the Lord Justice Clerk with their administrative functions in both the civil and criminal fields; (b) to liaise with all judges and assist in the exchange of information and views between them and the Lord President and the Lord Justice Clerk; (c) to liaise with officials of the Court of Session and the High Court with a view to the improvement of the operation of these courts; (d) to bring to the attention of the Lord President and the Lord Justice Clerk, with such recommendations as it thinks appropriate, matters upon which the Council consider that a decision should be made by them and matters which appear to the Council to be of concern to the judges generally or to individual judges; and (e) to prepare, when requested to do so, representations to be made by the Lord President, on behalf of the Judiciary, on subjects about which the views of the judiciary have been sought by external bodies

4.3 The Sheriffs Principal meet collectively, and with Ministers, officials of the Court Service and of the Executive as required, to consider developing policy, on which their views are sought by the Executive, and matters concerning the administration of the sheriff courts. The Sheriffs' Association serves as a channel for consulting with the sheriffs in connection with the development of Executive policy, and for discussions with the Court Service on the administration of the sheriff courts.

4.4 These arrangements reflect the present disparate nature of the judiciary. The new powers and responsibilities proposed for the Lord President would unify the judiciary. But within that unified judiciary would remain different concerns, priorities and perspectives. There would seem a case for bringing these differing interests together on a regular basis. A potential strength of an arrangement that brings all branches of the judiciary together under one judicial head is that policies on issues affecting the judiciary and the operation of the courts could be developed collectively and implemented consistently. We consider therefore there is a case for the creation of a statutory Judges' Council, chaired by the Lord President, and supported though his office. The Council would exercise its authority through the Lord President thereby strengthening his or her position in dealings with the Executive.

Question 18 Do you agree a statutory Judges' Council, chaired by the Lord President, should be established?

Question 19 If so, what should be the Council's membership and remit?