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CHAPTER 11 ELIGIBILITY FOR APPOINTMENT AS A JUDGE OF THE COURT OF SESSION
What was proposed?
11.1 In Chapter 12 of the consultation paper we asked for views on whether eligibility for appointment as a judge of the Court of Session should be extended to all practising solicitors.
What views were expressed in the consultation?
11.2 There was no consensus in the responses to this question. Extending eligibility was supported by the solicitor branch of the profession. There was also support from outside the profession where extending eligibility was seen as an important step to increasing greater diversity among the judiciary. On the contrary was a strongly held view that experience of pleading before the superior courts, or service as a sheriff, was an essential qualification for appointment as a judge of the Court of Session. The Lord President, the judges, the Sheriffs Principal and the Faculty of Advocates all considered experience of pleading before the superior courts as an essential qualification. Some from outside the legal profession and the judiciary questioned how a lawyer with no experience of appearing before the superior courts could be qualified to be a judge in those courts. However there was some acceptance that there was an argument for extending eligibility to solicitors who have extended rights of audience in either the Court of Session or the High Court.
How do we intend to proceed?
11.3 We have taken careful note of what has been said in the consultation, and the weight of opinion on both sides. Having balanced the arguments, we do not think that it would be right to extend eligibility for appointment to the Court of Session bench to all solicitors at this time. To do so would fail to take account of the arrangements that were made in 1990 when eligibility was extended to a broader group of solicitors. Under those arrangements, solicitors who had held rights of audience before both the Court of Session and High Court for a continuous period of five years became eligible to seek appointment as a judge. As so few solicitors have sought rights in both courts, this reform has not had an opportunity to bring forward candidates. We consider that the next logical step in extending eligibility would be to give the 1990 reforms that opportunity by adjusting the qualification to take account of the fact that solicitors are choosing to specialise in Court of Session work or High Court work. What we propose to do therefore is amend the 1990 Act to extend eligibility for appointment as a judge of the Court of Session to solicitors who, for a continuous period of not less than five years, have held rights of audience in either the Court of Session or the High Court of Justiciary.
11.4 It was suggested to us that the qualifying period should be ten years. This view was not universally held and we do not propose to make any change. A solicitor who has five years rights of audience may also have many years prior legal experience. All candidates for appointment would of course have to satisfy the judicial appointments board that they were appointable on merit.
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