In February 2007, the then Minister for Justice asked the Rt. Hon Lord Gill to undertake a wide ranging review of the civil courts system in Scotland. The business landscape in 2007 was very different from that which exists today. The remit of the review was wide and ambitious. Lord Gill took it forward with gusto, circulating an extensive consultation paper. There was a real sense that significant reform was imminent. Hopes were high that the objective of achieving a high quality system of civil justice through change would be met.
The report of the Scottish Civil Courts Review was released on 30 September 2009. It contained detailed consideration of the current system and its faults. There were a number of radical and promising recommendations including: active case management at all levels and detailed consideration of how this might be achieved; increased specialism within the judiciary; the introduction of a district judge to deal with civil claims of modest value; the introduction of the Sheriff Appeal court; and increased use of information technology.
The report was met with a wave of optimism. There was widespread agreement that change was long overdue and general approval of the proposed reforms. However, implementation of the changes would require funding. The changes would not be likely to win votes from the electorate. Following the downturn of 2008, would there be the political motivation to implement the changes?
Recent developments have brought renewed optimism.
Following one of Lord Gill's recommendations, in early 2011 Sheriff Principal James Taylor was invited by the Scottish Government to chair a review into the expenses and Funding of Civil Litigation in Scotland. The review began in May 2011 and has developed into a wide ranging consultation which tackles some of the key funding issues. Sheriff Taylor is due to report on his conclusions before the end of 2012.
Also, the Scottish Government has introduced the four year "Making Justice Work" programme. The programme is focussed on five projects, all of which pick up the themes of the Civil Courts Review. The stated goal is to "ensure the justice system better meets the needs of those it serves - the people of Scotland – through a series of improvements to make it fairer, more accessible, cost-effective and efficient".
The Scottish Government has stated that this programme will bring about a series of reforms. The first legislative step was the introduction of the Scottish Civil Justice Council and Criminal Legal Assistance Bill in May 2012. This Bill will establish a new body, the Scottish Civil Justice Council, which will replace the Court of Session and Sheriff Court Rules Councils. The Scottish Government said that "the Bill will establish the Scottish Civil Justice Council before later court reform legislation is introduced – in order that the Council can be up and running and able to consider, then help to implement, that later legislation as soon as possible." It is envisaged that the Council will have "a wider function of contributing to the on-going improvement of the civil justice system, making it more adaptive and fostering a culture of continuous improvement." The programme and Bill provide further hope that the groundwork is being laid for real change.
Perhaps most encouragingly, Lord Gill was appointed as Scotland's most senior judge, the Lord President. The First Minister, Alex Slamond said: “I warmly welcome the appointment of Lord Gill as Scotland's new Lord President. His commitment to reform and modernisation is clear and under his leadership I am confident there will be substantial improvements to the justice system." Advocates of change will have taken heart from the content of Lord Gill's speech at his installation ceremony at Parliament House on 26 June 2012. He said:
"The Scottish legal system is about to embark on the most significant changes that have taken place in over a century. The Parliament will now consider legislation for the creation of a Scottish Civil Justice Council. In due course legislation will be brought forward to implement the main proposals of the Scottish Civil Courts Review… The next few years will be a period of transition. I am confident that the profession will adapt flexibly to whatever changes emerge. I am convinced that these changes will be effective and beneficial if all of us, for our respective parts, approach them with an open mind and in a positive spirit. I hope that in this way Scotland's legal framework will best serve our society's needs."
Since then the Scottish Government has published plans to reorganise the Scottish courts estate, with one eye on the developments that will be needed for the reforms demanded by the Civil Courts review. Also, on 23 September in his address prior to the commencement of the new legal term in the Court of Session, Lord President Gill reiterated his commitment to implementing the reforms and urged all court users and representatives to assist in the process of change. Also, and perhaps most tellingly, he thanked the Scottish Government for their commitment and progress towards reform.
The Scottish Government will no doubt warmly accept this compliment; but they will also know that with this public pronouncement having been made from a figure as eminent as the Lord President, they will depart from the reform process at their peril.