The erudite and thought-provoking blogger Lallands Peat Worrier has written an interesting post regarding the UK Supreme Court bench, and the damage there might be to the standard of the Senators of the College of Justice left at Parliament House if, continually, the cream is taken down to London.
In addition, Robert Black QC commented about how the numbers had increased, from the days when the entire bench could fit in one court room, if only for ceremonial occasions. Now one thinks that the Usher Hall need be hired to fit them all in.
I thought that a wander through the archives might show how the number of High Court Judges in Scotland has increased over the years.
Apparently, as per Wikipedia, which may not be authoritative on this point, there were 15 Senators in 1689, when the Lord President was Lord Stair.
The numbers varied as the years went by, increasing and decreasing according to circumstances.
In modern times, the Administration of Justice (Scotland) Act 1948 envisaged a maximum number of 13 Senators. At that point the Lord President was Lord Cooper.
This maximum had been increased by the 1968 Act of the same name to 19. In 1968 Lord Cooper’s successor, Lord Clyde, was still in place.
Over the years after that by way of Statutory Instruments, the numbers continued to creep up.
By the time the number had been increased to 24 in 1986, Lord Emslie was in charge of the Court as he was when the following legislation was passed too.
In 1988, after sterling work by the Scottish Law Commission (SLC), the Court of Session Act was passed, as a consolidation of the various statutes dating back many years. This, in Section 1 (1) specified that the maximum number of judges was to be 24.
Since then, the prosaically titled “Maximum Number of Judges (Scotland) Orders” have been forthcoming every few years.
In 1991 the number went up to 25, the Court now being presided over by Lord Hope. In 1993 we saw an increase to 27 and there was a further jump to 32 in 1999 by which time Lord Rodger was Lord President.
The numbers rose to 34 in 2004 under Lord Cullen and that is where the number stands today.
Interestingly there was a temporary increase in 2009, under the Maximum Number of Judges (Transitional Provisions) (Scotland) Order, of the number of judges to 35 for the period from 1st September 2009 till 30th September 2009.
That arose because Lord Bonomy, who had been sitting as a judge on the International Criminal Tribunal for the former Yugoslavia, had come to the end of his term in the Hague, and he was due back one month before Lord Nimmo Smith was due to retire. To allow Lord Bonomy to be sit and to be paid, it was necessary to pass the Order referred to, and the maximum went back to 34 on Lord Nimmo Smith’s retirement.
Why has there been this increase over the years?
Traditionally the blame is placed on the ever growing number of High Court prosecutions, and the additional number of procedural hearings created in an effort to have the High Court run smoothly. The recent changes to personal injury procedure too have caused increased work, as cases are scheduled for proof or trial within around a year of being raised, a vast improvement over previous timescales.
In the SLC report preparatory to the 1988 Act, it was stated that, of the 24 Senators at the time, it was common to have at least 10 of them dealing with criminal trials at a time.
Bearing in mind the need for judges for the civil court, and for the First and Second Divisions for appeals, it was felt that an increase would help solve the problems.
However, as happens when a new motorway is opened, which though initially clear of traffic, is soon gummed up, and the calls for new bypasses start again, each time the numbers have gone up, the Senators have fairly quickly found their days filled.
Indeed if it was not for the presence of temporary judges, now subject to statute under the Judiciary and Courts (Scotland) Act 2008, the High Court and Court of Session would grind to a halt.
There are presently 17 temporary Judges, 11 of whom are Sheriffs, or Sheriffs Principal, the remaining 6 being practising QC’s.
Some years ago there was a controversy about “justice on the cheap” on the basis that a sitting Sheriff could sit as a temporary Judge, at little or no extra cost, and the Sheriff would be replaced in his own court by a part time Sheriff. Thus, for the cost of a part time Sheriff, a temporary Judge in the High Court became available. However, the complaints about that soon fizzled out, as there seemed to be a consensus that the system required suitable and experienced Judges in the Superior Courts, whether from the Bench, the Bar or the Sheriff Court.
There must come a “critical mass” situation however. There are around 400 hundred practising advocates at the Scottish Bar, of whom around 117 are silks.
This is a small pool from which to fund new judges. There seems to be a reluctance to appoint former Sheriffs to the High Court Bench. By my reckoning there are three just now, namely Lords Matthews, Wheatley and Bannatyne (Iain Peebles, as he was).
Standing that 11 of the 17 temporary Judges are Sheriffs, it seems an odd imbalance. Maybe Sheriffs from out of the capital don’t want to have to move to work in Edinburgh? Who knows?
It is also of interest that no solicitor-advocates have yet been appointed as Senators. One assumes that day must come, as the number of solicitor-advocate QC’s increases.
Will we see ever increasing numbers of Senators of the College of Justice? If as the Lallands Pear Worrier thinks, we might need more Scottish judges sitting on, or available for, the UK Supreme Court, then extra bodies may well be required. Does the Scottish legal profession have enough talent for about 10% of the available lawyers to be sitting as Superior Court judges?