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Lord Macaulay of Bragar: In replying to the noble and learned Lord the Lord Advocate, I should like to make it clear that I was in no way demeaning the value of judicial training. It has its own place in the system. I was certainly not suggesting that temporary sheriffs are Arthur Daleys with wigs on who go around Scotland making a little bit on the side. I never used that expression. I said that if someone offered me £300 a day I would no doubt take it, if I was suited for the job. As I understand it, temporary sheriffs are paid somewhere around that rate on a daily basis. I do not want that to be taken in any way as a criticism of them for doing the job.
As the noble and learned Lord, Lord McCluskey, pointed out, we are now dealing with an issue which is fundamental to the Scottish legal system. I have been qualified in the law for 40 years. I do not like personalising argument or debate, but I genuinely find this one of the saddest occasions at which I have been present in relation to the Scottish legal system. What the Lord Advocate is telling the Committee is that Scotland's population of slightly over 5 million people cannot run its own legal system efficiently.
So, what do we do? The High Court becomes overloaded, yet more judges are not appointed. I remember that in either the 1990 or 1993 debates I suggested that we should have a pool of judges in order to give us flexibility and to enable judges to have proper holidays and proper writing time. There may be a bit of slack in the system, but the system could be tightened when required. The Government rejected that out of hand. I was told--rightly or wrongly--that when the suggestion was made that we should have more judges (even if they had a day or even a week off occasionally) the excuse given by the Treasury was that if you appoint a judge you have to appoint a macer and find him a court and all the rest. The Treasury said that that could not be afforded, so the system has got constricted.
Is the noble and learned Lord now telling the people of Scotland, the people who matter--the noble and learned Lord does not matter; I do not matter; it is the system of justice in Scotland that matters--that the whole judicial system has ground to a halt and that there is no answer to it except to shift the problem around the corner from the High Court into the sheriff court to let the sheriffs deal with it and give them increased powers? Is he saying that everyone should say "hurrah", go home clapping their hands and say that we have solved the problem? The situation is absolutely preposterous.
Although I speak from the Opposition Front Bench, I am in no position to give any undertakings about appointing more judges. But is it not time that someone faced up to the situation, looked it square in the face, and set up a commission urgently to decide how we solve the problem? We do not solve it with a piecemeal approach, and, as I say, shove it around the corner.
I must say that I am surprised to hear the noble and learned Lord the Lord Advocate complaining about adjournments in the High Court. From practice in the sheriff court, I can assure him that it is the easiest place in the world to obtain an adjournment. It is difficult to get an adjournment in a High Court trial because the judges are very conscious of the court's duty not just to the accused and the Crown but to the public and jurors. There is not much of a problem in obtaining an adjournment in a sheriff court.
If you walk into a busy sheriff court, from time to time you will see a fiscal coming in at half-past nine in the morning with a pile of papers that he has not even read. He has not had time to read them. That is the way the system works. To suggest that there is room in the sheriff court to push in important cases such as, presumably, attempted murder, attempted rape and so on, which can attract a sentence of five years' imprisonment, and that that will solve the problem, is just not facing up to the problem.
There is the question of counsel available in the sheriff court. It is all very well to say that it should be left to the Legal Aid Board and it will decide. Anyone facing a sentence of five years' imprisonment is prima facie entitled to the best representation available within the legal system and even within the legal aid system. Who on the board makes the decisions? The Legal Aid Board comprises a great many people. I do not know
how many of them are legally qualified. Of course, the committees are legally qualified. If you speak to practising solicitors they tell you about the difficulties they sometimes have with the Legal Aid Board. At times it can be helpful; at others it can be obstructive. There is no consistency.Why not appoint more judges? I have no doubt that in accordance with recent tradition the noble and learned Lord the Lord Advocate might be sitting in a high position within a few months. I do not know. He may be sitting as a High Court judge and looking at matters in a different light, as his predecessor is now doing as the head of the judiciary. Why do we shrink from leaving the system the way it is and improving the High Court/sheriff court structure and instead dodge the column altogether?
If the system is grinding to a halt, the people of Scotland are entitled to know that. Although no one in the Scottish press pays much attention to what is said in this place unless it is sensational, I hope that the message will get through from the noble and learned Lord the Lord Advocate that the High Court can no longer cope with its business, and so the only answer is to increase the powers of temporary sheriffs and sheriffs in the sheriff court and shove the problem out of the way so as to ease the burden.
It is an absolutely disgraceful situation. The accused in particular, as well as the victim's family, is entitled not just to the best service available in his or her defence but to the best judges available in the land in cases where the sentence is likely to be five years' imprisonment.
Not often am I lost for words, but I repeat that this is a sad, sad night for the legal system of Scotland if what the noble and learned Lord said to the noble and learned Lord, Lord McCluskey, and to me about the state of the Scottish criminal legal system is true. The matter will be investigated again and again, and we will come back at the Report stage once we have more information. We do not have the backing of government researchers, but once the figures are available one can rest assured that they will be examined. The matter will then be brought back, perhaps not only in this House but in another place, and brought back with a vengeance to ensure that justice and not expediency prevails in Scotland. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.30 p.m.
Lord McCluskey moved Amendment No. 103
The noble and learned Lord said: I have largely spoken to Amendment No. 103, but there are one or two comments that I would have added had I been on my feet in time before the noble Lord, Lord Macaulay, withdrew his amendment.
First, I believe that I have an unrivalled breadth, depth and length of experience in the criminal courts in Scotland. I have been a law officer for more than five years and an advocate depute for more than seven years. I have practised in every court; the district court, the
In my time in the Crown Office, which started in 1964 and ended in 1979, there was pressure from the permanent staff to become full-time prosecutors and to get rid of the advocate depute system which had obtained for centuries. That pressure was successfully resisted during my time. The first crack in the dam appeared when the noble and learned Lord's predecessor was Lord Advocate, and I discovered that he was contemplating appointing members of the fiscal staff in the role of Crown counsel for the first time.
I wrote to him and he asked me to attend a meeting with him. He promised to set up a committee and so he did. It was chaired by the then Solicitor-General, who now sits as Lord Advocate; the noble and learned Lord, Lord Mackay of Drumadoon. He in turn, having become Lord Advocate, appointed as the chairman of the committee in his place the new Solicitor-General, Mr. Paul Cullen.
The report which the noble and learned Lord the Lord Advocate mentioned to this Committee was a majority report. The persons on the committee were the Solicitor-General for Scotland, who could hardly be described as independent in a matter of this kind; the Deputy Crown Agent; a solicitor from the Scottish Office; two or three people who had no connection, so far as I could understand, with the law; and a distinguished Queen's Counsel with substantial experience of the Crown Office. It was a majority report and he was the one who dissented. I was not allowed to see that report, but I was given a summary of it. That is the position. On the basis of that majority report from people who were substantially and plainly chosen for their support for the idea, the Lord Advocate purports to act on the basis of a committee report.
I do not know how difficult it is to find advocate deputes. In my day, there were 100 people from whom one had to choose the advocate deputes; now there are about 360 people. Therefore, I do not see how the difficulty can be as great as the Lord Advocate seems to suggest.
There is one other figure that the Lord Advocate will wish to put before the Committee, or alternatively the House at a later stage. He will find the answer extremely easily from the sentencing information system. How many sentences above six years have been imposed in the High Court in each of the last five years, or been imposed on remit from the sheriff court to a judge of the High Court in accordance with the remissions?
If this measure goes through, the likelihood is that the work of the High Court will be reduced in that fashion. That will please my noble and learned friend Lord Clyde who thought that the High Court ought to be spending more time dealing with civil business and less time dealing with the criminal business of sending people to prison for a substantial period of years.
These are deeply important matters and in respect of the amendment standing in my name, I beg to move.
Page 19, line 34, leave out (""five") and insert (""two").
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