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CHAPTER 6 JUDICIAL APPOINTMENTS
What was proposed?
6.1 In 2002 we set up a judicial appointments board as part of our reforms to the way judges and sheriffs are appointed. We said that after some experience of this new arrangement we would place the board on a statutory footing. In Chapter 6 of the consultation paper we set out our proposals for doing that. Much of what we proposed was informed by the positive experience of the present Board. We said that we did not intend to depart from the balance of lay and legal membership which we believed to be a particular strength of the present arrangements. We sought views on a range of matters including membership, how members should be appointed, their term of office, the extent to which Ministers should be able to offer guidance to the board, the board's remit, and whether the board should have a role in the appointment of two most senior judges, the Lord President and the Lord Justice Clerk.
What views were expressed in the consultation?
6.2 The responses to this part of the consultation were varied. A transparent process for appointing judges was seen as being essential for public confidence in the system. There was a strong body of opinion that favoured giving the board a statutory remit, and for that remit to make clear that merit was the sole basis for appointment.
6.3 The precise balance of lay and legal members was seen as unnecessary by some, and a number of respondents considered that one half of the board should be members of the judiciary. There was no consensus about how many Court of Session judges should be amongst the membership. Some favoured an increase; others, including the present Board, were concerned that this would create an imbalance, and give one particular body disproportionate representation. The present Board felt that the reasons given in the consultation paper in support of the proposed increase failed to take account of the manner in which the Board conducted its work.
6.4 There was considerable unease about the proposal that Ministers should be able to issue guidance. Some were strongly opposed to this in principle; others, including the present Board, recognised that there may be matters on which guidance would be of assistance. However the present Board stressed that guidance should not contain any material that could be regarded as compromising its independence when assessing the suitability of candidates. Some, including the present Board, felt that a statutory board would have a greater independence if it were to appoint its own staff.
6.5 Almost all who responded on whether the board should recommend appointment to the Inner House of the Court of Session considered that the board should not take on this function. A shortcoming in the present procedures was, however, commented on, and we may need to make an adjustment to the present arrangements in light of further discussions with the judiciary. There was a body of opinion that favoured the board's having a role in the appointment of temporary judges, although this was balanced by strong contrary views that favoured the present arrangement. The proposal to provide formally for a panel to advise on the suitability of candidates for selection to the two most senior judicial offices was welcomed. Views on membership of this panel varied quite considerably.
How do we intend to proceed?
6.6 We have developed our proposals in light of the responses to this important aspect of the consultation. These now form Part 2 and Schedules 1 and 2 of the draft Judiciary (Scotland) Bill.
6.7 We have recognised the force of the arguments for giving the board a statutory remit and for making clear that merit is the sole basis on which a recommendation for appointment should be made. We have included a statutory statement of independence in section 5, and made provision to encourage diversity in those coming before the board. We have taken account of the views expressed about guidance. We have restricted this to procedural matters, provided a requirement to consult on a draft and lay a draft before the Scottish Parliament. Any guidance issued would be published.
6.8 We have considered very carefully the conflicting views on whether recommending for appointment as a temporary judge of the Court of Session should fall within the board's remit. In doing so we have made the assumption that the office of temporary judge will remain a feature of the reformed judicial structure.
6.9 We accept that the present arrangements for appointing temporary judges allow appointments to be made quickly. However, the arrangements are not entirely consistent with the principles of equality of opportunity and transparency of process that are now features of all other judicial appointments. We consider it anomalous that a qualified person is able to apply for the office of full time judge, but not for appointment as a temporary judge. While we acknowledge there are important differences, this does not compare favourably with the shrieval bench where those wishing to serve as part-time sheriffs may apply to the Board. We also recognise that those who bring their cases before the highest courts have an expectation that there is consistency in the way the judges are appointed. On balance therefore we consider that the judicial appointments board has a role in the appointment of temporary judges. However we feel a distinction can properly be made in the case of those who have been appointed to judicial office, such as serving and retired sheriffs principal and sheriffs, and are then appointed a temporary judge. Such individuals will have already satisfied the Board or have many years of judicial experience. The draft provisions we are now bringing forward require only those who have not held shrieval office to make application to the board. This approach offers flexibility to act swiftly when necessary, by appointing a member of the shrieval bench at short notice, and also opens the prospect of creating a wider pool of temporary judges to be called upon to meet planned commitments.
6.10 Schedule 1 to the draft Bill provides for the membership and practical aspects of the board. We have decided not to make any change to the composition of the membership. The experience of the Board established in 2002 is that the existing balance of membership works very well. The balance of legal and lay membership, and the steps the Board has taken to develop its practices so as to ensure equality of participation by members, are particular strengths which we would not wish to disturb at this time. However, we recognise that circumstances in the future may justify a change in the composition of the legal membership, and we are providing a power that will allow Ministers to alter the number in any of the categories: paragraph 2(3).
6.11 In paragraph 10 of the Schedule we are committing Ministers to providing the staff and resources to enable the board to carry out its functions. The payment of fees for members is provided for separately in paragraph 9. We are satisfied that these provisions, together with the statutory guarantee of independence in section 5 of the Bill, are adequate to continue the independence of operation which the present Board enjoys. The four staff of the present Board, although civil servants, are assigned to work exclusively for the Board. They occupy separate premises which have been made available for the Board, and can make use of the various support arrangements available within the Scottish Executive. We do not consider it would be justified to impose on public funds the additional expenditure that would arise if the board were to be established as a free standing body.
6.12 Recommending to the First Minister individuals who are suitable for appointment to one of the two most senior judicial offices, Lord President or Lord Justice Clerk, will not be a function of the judicial appointments board. We are providing separately for a panel to be established on each occasion to carry out this task. The chair of the board, and a second lay member of the board will, however, participate in such a panel. Provision is made in sections 11, 12 and Schedule 2 .
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