About us
Consumer Scotland is the statutory body for consumers in Scotland. Established by the Consumer Scotland Act 2020, we are accountable to the Scottish Parliament. The Act defines consumers as individuals and small businesses that purchase, use or receive in Scotland goods or services supplied by a business, profession, not for profit enterprise, or public body.
Our purpose is to improve outcomes for current and future consumers, and our strategic objectives are:
- to enhance understanding and awareness of consumer issues by strengthening the evidence base
- to serve the needs and aspirations of current and future consumers by inspiring and influencing the public, private and third sectors
- to enable the active participation of consumers in a fairer economy by improving access to information and support
Consumer Scotland uses data, research and analysis to inform our work on the key issues facing consumers in Scotland. In conjunction with that evidence base we seek a consumer perspective through the application of the consumer principles of access, choice, safety, information, fairness, representation, sustainability and redress.
Consumer Principles
The Consumer Principles are a set of principles developed by consumer organisations in the UK and overseas.
Consumer Scotland uses the Consumer Principles as a framework through which to analyse the evidence on markets and related issues from a consumer perspective.
The Consumer Principles are:
- Access: Can people get the goods or services they need or want?
- Choice: Is there any?
- Safety: Are the goods or services dangerous to health or welfare?
- Information: Is it available, accurate and useful?
- Fairness: Are some or all consumers unfairly discriminated against?
- Representation: Do consumers have a say in how goods or services are provided?
- Redress: If things go wrong, is there a system for making things right?
- Sustainability: Are consumers enabled to make sustainable choices?
We have identified access, choice and information as being particularly relevant to the consultation proposal.
Our response
Consumers experience the impacts of different hearing types in different ways, according to their individual circumstances. Consumer Scotland recommends maintaining sufficient flexibility to allow the system to meet this range of needs, including the use of hybrid hearings. We consider that consumers are likely to need significant support and guidance to understand their options in relation to attending hearings and to ensure that they can ask for what they need, in the appropriate procedural form. There is a need to ensure clear communication of the Rules to parties who are unused to court proceedings, and in particular, to unpresented parties, in advance of any hearing.
Previous research has identified a lack of data on mode of hearings, posing challenges to robustly and fully assessing the impact of remote hearings. It is unclear whether previous recommendations to address this have been actioned. We recommend that any data that has been collected should be published and that any future decisions should be informed by appropriate impact assessments to allow evidence-based decisions to be made.
More generally, Consumer Scotland recommends that the SCJC and SCTS work to develop an Inclusion Framework, setting out the principles, standards and mechanisms necessary to ensure that the need for inclusive justice is recognised from the outset in the design and implementation of processes.
Question 1 – Is there sufficient guidance and clarity in the rules about holding a court hearing either in-person, virtually or by hybrid means? If not, what would be helpful?
The Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Attendance at Hearings) 2023 inserted new chapters into the Court of Session Rules and the Ordinary Cause Rule. The Rules set out the Court’s general preference for procedural hearings to take place by electronic means, although exceptions to this are provided for where a person is unrepresented or an interpreter is to be used. More generally, the Rules provide that the Court may - at its own instance or on the motion of a party - order that attendance at procedural hearings by any person is to be by means of physical attendance instead. The Court may also order that attendance at other kinds of hearings by any person, which would otherwise be attended physically, may instead be attended by electronic means. Hybrid attendance, where one party attends in person and others remotely, is also permitted. Before making any order about the mode of attendance, the Court is to allow opportunities for the parties to make representations about the mode of attendance.
The Rules appear to be clear and to provide maximum flexibility for the Court to respond to the needs of the parties. We consider that the Rules are likely to be understood by regular and professional court users such as expert witnesses, court staff, advocates and solicitors. However, it is not apparent from the consultation how these Rules are communicated to parties who are unused to court proceedings, and in particular, to unpresented parties, in advance of any hearing.
Research conducted for the Scottish Government on the Civil Justice System’s Pandemic Response (2023) found both diverse practice and diverse views within court settings on the use of virtual hearings, with no single, consistent opinion on their impact or their continued use. While the report found some advantages of virtual hearings for young people, those with additional needs or vulnerable court users, it also highlighted some challenges including issues arising from technical problems; digital exclusion and literacy (particularly, though not only, among parties); and challenges around communicating, both verbally and non-verbally. It is fundamentally important that parties know what to expect and can understand what adjustments can be made, and how to ask for these. Therefore our view is that while the Rules themselves are clear, we would welcome further thought being given to how to communicate these to parties.
Question 2 – Is the process for requesting a change to the mode of attendance straight forward or too complicated? If so, what would be helpful?
The SCTS website contains helpful videos about how to participate in digital proceedings. However, it is not clear what parties should do if they cannot participate or are not comfortable participating in digital proceedings. We consider that clear signposting and explanation of the various options – and how to ask for them to be applied – is essential for consumers.
Research by Kantar for HMRC on Assisted Digital and Digitally Excluded Support Needs (2014 and 2020) looked at the proportion of UK adults who were able to access public services digitally. UK adults were grouped into three main categories: Digitally Capable; requiring Assisted Digital support (AD); and requiring Digitally Excluded support (DE). Digitally Capable adults are able to interact with government services online independently. AD adults needed support to complete at least some online interactions with government. DE adults report that they never use the internet either at home or elsewhere. All those who need DE support also fall into the total AD support category. Follow up research in 2020 indicated that the proportion of UK adults who require AD support is at 22%. This group was, on average, older than digitally capable adults and more likely to have problems with literacy or numeracy. Based on these figures, it is likely that a significant number of court users may benefit either from assistance to access digital court services, or from the ability to attend in person.
In 2023, Consumer Scotland commissioned YouGov to undertake research on Using Legal Services in Scotland (2024). We explored how confident consumers in Scotland are in relation to legal issues and their perception of how accessible justice is. Using internationally approved standardised measures of legal confidence and accessibility the survey of consumers found that just over a third (37%) of respondents have low levels of legal confidence. This means a significant minority of respondents are not confident they could personally achieve a positive outcome in certain common legal scenarios. In addition, YouGov‘s survey found 24% of respondents have a low accessibility of justice score indicating they think the justice system is not particularly accessible. Based on this research, we consider that consumers are likely to need significant support and guidance to understand their options in relation to attending hearings and to ensure that they can ask for what they need, in the appropriate procedural form. We were unable to find such advice on the SCTS website and recommend that it be developed (or made more prominently available if it already exists).
Question 3 – With procedural business defaulting to being virtual, has this approach worked or has it been problematic or caused confusion?
No response. Consumer Scotland does not support individual consumers in relation to taking court action so cannot answer this question.
Question 4 – Has there been or is there confusion about what a procedural hearing is and what is not?
No response. Consumer Scotland does not support individual consumers in relation to taking court action so cannot answer this question.
Question 5 – Have virtual hearings had a positive or negative impact on access to justice?
The Scottish Government’s 2023 report noted a number of implications for access to justice. In particular, perceived barriers arose from digital exclusion and technological issues, including a lack of connectivity due to poor broadband connections for both court users and parties, use of devices that were inadequate for the purpose or a lack of IT support. Concerns were also raised regarding the degree to which virtual hearings permitted communication between parties and their representatives or whether virtual hearings made the chances of settlement between the parties less likely. The report also notes concerns raised by the Faculty of Advocates and Law Society of Scotland around communication and around the ability of clients to follow and understand proceedings. However, the report also noted that for some users, particular those with a health condition, disability, or additional support need which could present additional challenges for traveling or being in a new and potentially physically inaccessible place, then virtual hearings had increased access to justice.
There is no therefore definitive answer to this question, consumers are experiencing impacts in different ways, according to their individual circumstances. Consumer Scotland recommends the maintenance of sufficient flexibility to allow the system to meet this range of needs and for these flexibilities to be clearly signposted, with support put in place to allow users to access these.
Question 6 – Have virtual hearings had a positive or negative impact on open justice?
The Scottish Government’s 2023 report reflects concerns that there were too many obstacles for members of the press or public to overcome to join remote hearings, and that the process needed to be made easier. Professional and judicial users felt that access to hearings was easier for in-person compared to virtual hearings. It is unclear at the time of writing whether measures have subsequently been taken in response to the concerns outlined in this report.
Question 7 - Have you attended a court hearing by telephone? If so, can you provide feedback on your experience of attending a court in this way?
No response. Consumer Scotland has not been directly engaged in court hearings so cannot answer this question.
Question 8 - How do you find the WebEx platform for conducting virtual hearings and are there any improvements you would like to see?
No response. Consumer Scotland has not been directly engaged in court hearings so cannot answer this question.
Question 9 – Should more use be made of hybrid hearings and if so, how do you envisage these working? By hybrid hearings we mean a hearing where the judge or sheriff is sitting in court, with the potential for everyone to attend in person, and one or more other participants attend remotely. Does it matter who is attending remotely (eg lawyer, witness, party)?
In line with our answer to Question 5, we note that consumers experience the impacts of different hearing types in different ways, according to their individual circumstances. Consumer Scotland recommends maintaining sufficient flexibility to allow the system to meet this range of needs, including the use of hybrid hearings.
Question 10 - Did you encounter any technical difficulties during a virtual hearing or a hybrid hearing? If so, can you provide details on how the issue was resolved and if you were able to meaningfully participate?
No response. Consumer Scotland has not been directly engaged in court hearings so cannot answer this question.
Question 11 - Overall do you support virtual attendance at court or do you feel that more civil business should return to being held in person? Please give reasons for your answer.
The Scottish Government’s 2023 report concluded that in assessing the impact of remote hearings and other measures, it would be important to continue to gather data from across different participants – including parties. The report noted that the lack of data on mode of hearings and on party litigants posed a challenge to robustly and fully assessing the impact of remote hearings, noting that strengthening the collection and recording of data about the mode of individual hearings would enable analysis of variations in their use across the court estate. The report suggested better recording of information about party litigants and a programme of further survey research to monitor how well supported and trained clerks and members of the judiciary feel with respect to remote hearings specifically, to identify further training or support needs as well as gathering structured feedback from a sample of parties who participate using different modes. It is unclear whether these suggestions have been taken up. We recommend that any data that has been collected should be published and that any future decisions should be informed by appropriate impact assessments to allow evidence-based decisions to be made.
More generally, Consumer Scotland recommends that the SCJC and SCTS work to develop an Inclusion Framework, similar to that proposed by the Online Procedure Rule Committee in England and Wales. The Framework recognises that people may struggle to achieve access to justice because they do not understand their rights, are not aware of the support available, have vulnerabilities or additional needs, or are intimidated by lengthy and difficult processes. It sets out the principles, standards and mechanisms necessary to ensure that the need for inclusive justice is recognised from the outset in the design and implementation of the system. It proposes a number of ways in which the user experience can be better designed and delivered including design principles and standards, assisted access for digitally excluded or other vulnerable groups, user testing, data monitoring and service improvement.