The Scottish Government

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1. This paper seeks your view, by 19 June 2009, on the attached draft regulations specifying the means by which members may be nominated or otherwise selected for appointment to the governing body of the new statutory Scottish Court Service. This timetable for responses reflects the relatively tight timescales for establishment of the new Scottish Court Service if this is to be achieved by 1 April 2010, and the extent of prior consultation which has already been carried out on the issues in this paper.

Background

2. The Judiciary and Courts (Scotland) Act 2008 provides for the establishment of the Scottish Court Service as a statutory body under the chairmanship of the Lord President. The SCS will be responsible for providing the property, services, officers and other staff required for the Scottish courts and their judiciary, and for providing similar support for the Lord President and certain other office-holders in relation to their administrative functions.

3. The Judiciary and Courts (Scotland) Act 2008 provides that the new statutory Scottish Court Service ( SCS) is to consist of the following members:

Judicial Members

• The Lord President
• The Lord Justice Clerk
• One other person holding the office of judge of the Court of Session
• One person holding the office of sheriff principal
• Two persons holding the office of sheriff, and
• One person holding the office of justice of the peace.

Non-judicial members

• An advocate practising as such in Scotland
• A solicitor practising as such in Scotland
• The Chief Executive, and
• Three other individuals none of whom is qualified for appointment as a judicial member or for appointment under any of the other categories.

4. Paragraph 3 of Schedule 3 of the Act provides that:-

(1) It is for the Lord President to appoint the members of the SCS (other than the Lord Justice Clerk and the Chief Executive). ¹

(2) The Lord President may appoint a person to be a member only if the person has been nominated, or otherwise selected for appointment, in accordance with such procedure as the Scottish Ministers may by regulations prescribe.

(3) Regulations under sub-paragraph (2) may-

(4) The Scottish Ministers must consult the Lord President before making regulations under sub-paragraph (2).

5. The Lord President has already consulted representatives of the various tiers of judiciary and the legal profession who are eligible for membership of the SCS governing body. This paper is informed by the Lord President's views. However, the Lord President will be formally consulted on the terms of a final draft of the regulations before they are made by the Scottish Ministers.

Principles

6. The members of the governing body of the SCS will be responsible for the SCS's good governance, and for its effective and efficient discharge of its responsibilities. While members will bring a range of relevant professional insight and experience to the work of the SCS they will not be appointed simply to represent the interests of their part of the profession. They must put these interests aside where they conflict with their role in the governance of the SCS. In exercising their role, they will be under a legal obligation to take account, in particular, of the needs of members of the public and those involved in proceedings in the Scottish courts.

7. The process of appointing members will not come within the remit of the Office of the Commissioner for Public Appointments in Scotland but will, taking account of proportionality and practicality, operate within the principles of fair and open competition and best practice for public appointments. This may be different for judicial and non-judicial members. Guidance on this is given in the OCPAS Code http://www.ocpa-scot.org.uk/downloads/NewCode.pdf

8. Appointments must be able to be defended against claims of patronage and be justifiable on the basis of the nature of the contribution which each member can make to the SCS. Different means of selection may be appropriate to different categories of members, but the means of selection of all members must be demonstrably fair.

Options and recommendations

9. The Scottish Ministers are minded to prescribe the following in regulations about the appointment of members of the SCS:

Appointment of a persons holding the office of judge of the Court of Session

Judges of the Court of Session shall be invited to nominate themselves or others to be a member of the SCS. Any judge may nominate or be nominated to the Lord President. In the event of multiple nominations, the Lord President shall decide who to appoint. Since this is a small constituency, all of whose members are known to the Lord President, we do not consider that he should be required to seek the advice of a selection panel on this appointment.

Q1. Do you agree that the senator member should be considered for appointment by means of nomination?

Appointment of a Sheriff Principal

Sheriffs Principal shall be invited to nominate themselves or others to be a member of the SCS. Any sheriff principal may nominate or be nominated to the Lord President. In the event of multiple nominations, the Lord President shall decide who to appoint. Again, this is a small constituency, all of whose members are known to the Lord President, so we do not consider that he should be required to seek the advice of a selection panel on this appointment.

Q2. Do you agree that the sheriff principal member should be considered for appointment by means of nomination?

Appointment of two sheriffs

The Lord President shall invite sheriffs to submit applications to a selection panel if interested in serving as a member of the SCS. The selection panel shall notify the Lord President of persons selected as suitable for appointment in order of preference. The Lord President shall have regard to the advice of the selection panel in deciding whom to appoint.

Q3. Do you agree that the sheriff members should be selected for appointment by means of a selection panel?

Appointment of a justice of the peace

The Lord president shall invite justices of the peace to submit applications to a selection panel if interested in serving as a member of the SCS. Given the relatively large number of potential applicants, the selection panel may choose to solicit expressions of interest through advertisement in the appropriate specialist media. The selection panel shall notify the Lord President of persons selected as suitable for appointment in order of preference. The Lord President shall have regard to the advice of the selection panel in deciding whom to appoint.

Q4. Do you agree that the justice of the peace member should be selected for appointment by means of a selection panel?

Appointment of advocate and solicitor members

The Lord President shall invite advocates and solicitors to submit applications to a selection panel if interested in serving as a member of the SCS. Given the relatively large number of potential applicants, the selection panel may choose to solicit applications through advertisement in the appropriate specialist media. The selection panel shall notify the Lord President of persons selected as suitable for appointment in order of preference. The Lord President shall have regard to the advice of the selection panel in deciding whom to appoint.

Q5. Do you agree that the advocate and solicitor members should be selected for appointment by means of a selection panel?

Appointment of non-legal members

The Lord President shall seek applications for these posts to be submitted to a selection panel. In the interests of openness and of seeking the widest possible range of suitable applicants, the applications will be solicited by public advertisement. The selection panel shall notify the Lord President of persons selected as suitable for appointment in order of preference. The Lord President shall have regard to the advice of the selection panel in deciding whom to appoint.

Q6. Do you agree that the non-legal members should be selected for appointment by means of a selection panel?

10. Ministers considered other options, which are summarised in Annex A. None of these options, however, was felt to reflect fully the need for fair and open competition. In particular, Ministers took the view that nomination of SCS members by professional bodies, or election by their peers would inappropriately give the impression that SCS members were appointed as representatives of particular interests, rather than as governors of a public service.

Expressions of interest

11. Ministers propose that the Lord President may specify the form which any nomination of a judge or sheriff principal may take. For other members of the SCS the applications shall require iteration of the reasons why the person may possess the skills and experience necessary for service as a member of the

The selection panel

12. A majority of the members of the Scottish Court Service will be judicial office-holders, in recognition of the SCS's purpose. The Scottish Government therefore proposes that the selection panel which would advise the Lord President on the relative suitability of candidates for appointment should have a judicial majority, with two judicial members and one independent member.

13. We propose that regulations shall provide that the judicial members of the selection panel shall be:

• A judge of the Court of Session who has not expressed an interest in serving as a member of the SCS; and
• A Sheriff Principal who has not expressed an interest in serving as a member of the SCS.

14. The independent member of the selection panel will have an equally important role in ensuring that recommendations are made to the Lord President about the suitability for appointment of possible members of the SCS. It is important for the transparency of the appointments process, and for the balance of expertise, that the independent member is someone other than a practising member of the legal profession. It is also important for the demonstrable integrity of the process that the Lord President is protected from any possible suggestion that the appointment of the independent member of the panel is an act of patronage, and that the person appointed is of sufficient experience and standing for this important role. We therefore propose that the lay member of the selection panel is:

• A member of the governing body of another public authority.

15. The draft regulations take the approach of naming ascertainable individuals as members of the selection panel. For illustrative purposes only we have specified possible individuals. These may not be the ascertainable individuals that appear in the finalised regulations and the views of consultees would be welcomed on this matter.

Q7. Do you agree that the selection panel should have a judicial majority? Do you agree that the panel should comprise of a judge of the Court of Session, a sheriff principal and an independent member from another public authority? If so, do you have views on which public authority should be specified, if any?

16. Thereafter Ministers are suggesting the regulations prescribe that members of the SCS are recommended to the Lord President for appointment by a selection panel comprising current members of the Board which would be made up of:

• The member holding office as a judge of the Court of Session
• The member holding office as the sheriff principal
• The longest serving lay member.

Q8. Do you agree that selections for second or subsequent appointments to the board should be made by a selection panel comprising these existing board members?

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