In the lead up to the Scottish Parliament's recess two pieces of legislation concerning judges were hitting the headlines.
First, the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill became only the third piece of legislation to be passed by the Scottish Parliament under the emergency procedures set out in the Standing Orders of the Parliament. The Act, which was passed in just one day on 15 June 2006, provides a mechanism whereby the functions of the Lord President and Lord Justice Clerk are able to be carried out by other senior judges when one of those offices is either vacant, or where the judge in question is incapacitated. The Act was a direct response to the situation involving the current Lord President, Lord Hamilton, who had been off with a stress-related illness for two months prior to the Bill being enacted.
That Act had the support of a number of judges, who were keen to ensure that the administration of justice is not hindered by the absence of the Lord President. The second piece of legislation concerning judges that is being considered by the Scottish Parliament does not appear to have such support.
The Judicial Appointments Bill has been heavily criticised by both judges and lawyers who fear that the changes which the Bill seeks to make pose a risk to the independence of the judiciary. Criticism has also come from the high profile Commonwealth Magistrates' and Judges' Association (CMJA), whose president is the most senior Scottish judge in the House of Lords, Lord Hope of Craighead. The CMJA is deeply concerned about the greater role that the Executive wants in choosing top judges. In its proposal, the Executive would be responsible for a number of appointments to the Judicial Appointments Board. A worry is that the Executive would have too much influence over exactly who becomes a judge, thereby diminishing the doctrine of the separation of powers.
A second concern highlighted is that the Lord President would be responsible for the entire court system, including the sheriff courts. This aspect of the Bill has become all the more contentious due to the recent stress related illness of the current Lord President, discussed above.
The Justice Minister, Cathy Jamieson MSP, has now been forced to delay the legislation until after the Scottish Parliament elections next year. This Bill is one of two bills important to the Executive's current legislative programme that have had to be shelved in order to release Parliamentary time for the Executive to introduce the Damages Bill, which aims to reform compensation paid to victims of mesothelioma, a cancer related to asbestosis.