The Courts Reform (Scotland) Bill was introduced in the Scottish Parliament on 6 February 2014. It has been allocated to the Justice Committee, whose first evidence session will take place on 18th March 2014. The Bill is wide ranging. Provisions include creation of a new judicial office of “Summary Sheriff” and creation of a new Sheriff Appeal Court. The Bill also provides for merging of the Tribunal Service with the Scottish Courts Service – previously a matter for separate consultation from Courts Reform.
One aspect is of particular interest in relation to the adult incapacity regime. The Scottish Government’s consultation document prior to introduction of the Bill contained proposals for a specialist Scotland-wide personal injury court. The Mental Health and Disability Sub-committee of the Law Society of Scotland made representatives that there should be similar provision for a Scotland-wide adult incapacity jurisdiction, or alternatively generalised provision for all-Scotland jurisdictions. The alternative has been adopted by Scottish Government. Section 41 of the Bill provides that the Scottish Ministers may by order provide that the jurisdiction of a Sheriff of a specified Sheriffdom sitting at a specified Sheriff Court extends territorially throughout Scotland for the purpose of dealing with specified types of civil proceedings. In addition, sections 34 – 37 provide for judicial specialisation by empowering the Lord President (not Scottish Ministers) to determine categories of Sheriff Court case that the Lord President considers to be suited to being dealt with by specialist judges. Wherever the Lord President has done that, the Sheriff Principal of a Sheriffdom may designate sheriffs as specialists.
This provision opens the way to achieving recommendations first made by the Mental Health and Disability Committee 22 years ago, as part of the law reform process which lead to the Adults with Incapacity (Scotland) Act 2000.
Scottish Law Commission Discussion Paper No 94 (September 1991) Question 84 read: “Should all applications relating to the personal welfare and financial affairs of mentally disabled people….be heard by the courts, new Mental Health Tribunals or new Mental Health Hearings?”
The Committee proceeded to analyse all of the requirements for the jurisdiction and came to the conclusion, set out in some detail in the Law Society of Scotland’s response to consultation of March 1992, that the appropriate forum should be the Sheriff Court, but that there should be designated sheriffs. After setting out the analysis, the submission concluded: “…Of all options available, such a system of designated sheriffs would best meet all of the requirements identified above.”
That proposal gained substantial, if not unanimous, support and provision for designated sheriffs was included in the draft Incapable Adults Bill annexed to the Scottish Law Commission report number 151 on Incapable Adults (September 1995). That provision, however, quietly disappeared from the Bill as introduced, and despite representations, was not included in the legislation. Experience since then has demonstrated that his omission was an error, but fortunately one capable of rectification. If the Courts Reform Bill is enacted, in this respect, substantially as introduced, that will at long last open the way to implementing such rectification.