RICHARD NM ANDERSON, Advocate
The Scottish Minister of Justice has requested the Lord Justice Clerk to carry out a review of civil justice in Scotland. A good thing, I say. But not great.
Lawyers have a fondness for precedent and tradition. Aspects of Roman law can be seen at work every day in the Scottish Courts. Change for the sake of change is rarely tolerated. Despite the blindfold that adorns many statutes, however, justice is not entirely blind to what is going on around it.
Concern about the procedures in both our criminal law and civil law has been growing for some time. You can find mention as long ago as 1980 in the Royal Commission on Legal Services in Scotland. In 1995 Lord Cullen in Scotland - and later, Lord Woolf in England in 2000 - felt obliged to carry out a review of their respective civil court systems. Lord Bonomy later carried out a similar review in relation to the procedure in the criminal courts in Scotland.
The resultant reports did not make comfortable reading, throwing up litanies of expense and delay.
In Scotland we responded piecemeal. A further review by yet another judge - Lord Coulsfield - resulted in a new "fast-track" procedure for some categories of personal injury cases. Judges were to adopt a more "pro-active" approach to the management of such cases. Further piecemeal reform followed for commercial actions - first in the Court of Session and then, with success, in Glasgow Sheriff Court. Judges were again encouraged to be pro-active.
Perhaps carried away by the success of the new rules for commercial actions, the Sheriff Principal in Glasgow has now introduced a pilot scheme containing new procedures for personal injury actions in Glasgow Sheriff Court - requiring judges to be more ... pro-active. Ditto in the field of criminal procedure where pro-active has taken the form of special intermediate diets, or pre-trial hearings, at which judges are expected to review undisputed evidence, and requests for expert evidence.
Scots are very cautious in the way they go about their business. Each of these piecemeal reforms has been first introduced with great care in pilot schemes with some success. But what happens when, or if, these piecemeal reforms are rolled out across the country, and are applied by every judge?
As with so many of these reforms, hidden cultural changes can lurk beneath what appears to be an attractive procedural change. Yes, these reforms do address the concerns about delay and costs. However, they may represent a more substantial and significant transformation of Scots law.
Scots law has traditionally adopted, and taken great pride in, its "adversarial" approach. It is tradition for parties in both civil and criminal proceedings to bring such evidence as they feel appropriate. And the judge, with no prior knowledge of the case, traditionally acts as passive umpire and guardian of the law.
In other jurisdictions, particularly those following the European system of civil law, they take great pride in, their inquisitorial approach. Here, an investigating magistrate undertakes a form of "official enquiry" in which the judge plays a pro-active part in the gathering of evidence, and in the notional search for the truth.
What concerns me about the above piecemeal reforms in Scotland, particularly when fully "rolled out", is that they may result in a subtle shift in emphasis away from an adversarial system and towards a system that is more inquisitorial.
Will we see "pro-active" judges given the powers to rule out particular lines of evidence or a particular type of expert witness? Not inconceivable in a personal injury case, or at procedural hearings in commercial actions, or even at Intermediate Diets in criminal cases.
And who is to say whether or not that is a bad thing? It might well be the price that has to be paid to eliminate delay and expenses. But should such changes be allowed to take place without some consideration being given to their full consequences? Debate and deliberation on that scale cannot be done piecemeal.
The direction in which any reform of Scots law should go, and any necessary protections that should accompany it, I would suggest, requires something far grander in scope and authority.
Of course, some kind of review is necessary, and that is why I say the Scottish Minister of Justice's decision is "good". But again, what we are getting is reform on the cheap. It is no substitute for an in-depth review by a Royal Commission.
And that is why I say it is not "great".
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereComments are closed on this article