SPEECH BY MINISTER FOR JUSTICE JIM WALLACE
GIVEN ON 14TH MARCH 2001
AT STRATHCLYDE UNIVERSITY LAW SCHOOL

JUDICIAL APPOINTMENTS - AN INCLUSIVE APPROACH

It is a great pleasure to be with you here today in Glasgow. As Justice Minister I believe that the legal profession has a key role to play in a devolved Scotland and that it is important that the lawyer of the future receives a substantial degree of legal skills training. I warmly welcome, therefore, the creation of these impressive facilities for the professional training of Scottish lawyers by the Glasgow Graduate School of Law, which stand comparison with anything that I have seen in other parts of the UK.

I would also like to extend my thanks to University of Strathclyde for providing a forum for the announcement today of the Scottish Executive's plans for the establishment of a Judicial Appointments Board. The Law School held a small seminar for the Lord Advocate and his officials last year to discuss the topic of reform in relation to judicial appointments and so it is fitting that today's announcement should also take place here.

As Professor Paterson has said, I am going to speak about the judicial appointments system and the Scottish Executive's proposals for changing the way Judges and Sheriffs are selected. I think it is particularly appropriate that I should be here with law students today to talk about this. It may seem far off at the moment but at some time in the future some of you will no doubt have aspirations to sit on the Bench. It is therefore apt that I should be setting out our proposals for a more transparent and equitable judicial appointments system before some of our future Sheriffs and Judges.

The changes to the judicial appointments system that I will be discussing today are one element in a broader programme to modernise parts of the legal system in Scotland. We have introduced a number of legislative and policy changes which will bring up to date aspects of Scots law and the management of the judicial system. You may have seen press coverage earlier in the month when the Executive published the draft Freedom of Information Bill for consultation. This Bill contains proposals for the first ever legally enforceable right of access to information held by Scottish public authorities. I consider this to be a vitally important step forward in creating a more open and accountable system of government in Scotland.

Another example of the way in which we are tackling outdated aspects of the law is The Abolition of Feudal Tenure (Scotland) Act which received Royal Assent on 9 June 2000. This will sweep away outdated feudal rights and replace them with a modern system of land ownership. The Act is the first part of the property law reform programme. The Bill on Title Conditions will complement the abolition of the feudal system and rationalise the law concerning real burdens and we plan to consult on the draft Bill in the very near future.

Other measures which have been introduced as part of our commitment to modernise the legal system include the Convention Rights (Compliance) Bill which will ensure that certain aspects of civil and criminal law are compatible with the ECHR. Introducing changes to the judicial appointments system will be a further significant step in our programme to improve the openness of government in Scotland.

I should like to emphasise first of all that in seeking to introduce a more open system for recommending judicial appointments I am not in any way criticising those currently sitting on the Bench or their predecessors. The existing system has provided Scotland with a distinguished judicial bench over the years. But the system, rather than the individuals, has come under scrutiny and has been found wanting.

In recent years the current system has come under criticism from a range of commentators, including some in the legal profession, the media and legal academics. The main concern they have about the current system is that it is too secretive and is not open enough to public scrutiny. Following on from that is the charge that this lack of transparency can lead to charges of cronyism.

It is not hard to see how this perception can come about. The statutory arrangements for judicial appointments are set out in the Scotland Act, which essentially provides for the First Minister to recommend candidates to Her Majesty the Queen, after consultation with the Lord President of the Court of Session. In practice, when vacancies for supreme court Judges arise the Lord Advocate recommends candidates to the First Minister, after consultations which are conducted in private. For appointments to the Shrieval Bench, vacancies are advertised and the Lord Advocate again makes recommendations to the First Minister, having taken advice from the Sheriffs Principal.

As I said it is fairly easy to see why such a system has come under attack and I share many of the concerns. Names emerge for appointment to the Supreme Court Bench without the vacancy having been advertised or the candidate having applied. I do not believe this is in keeping with current appointment practices in the public sector. However it should be said, and I am sure you are well aware, in practice there is fairly limited pool of individuals who have the requisite qualifications and experience to be considered for appointment to the Supreme Court Bench. It could be argued that changing the appointments system will not bring about a significant difference in the list of Judges appointed since the pool of candidates is so small.

While there is probably some truth in that I do not think it is a sufficient reason to keep the status quo. In an era when the Scottish Executive is moving towards greater openness in the way public appointments are made across the board, I think it is essential that the process of judicial appointments is brought up to date.

One particular feature of the current system that has come under fire has been the degree of influence which is concentrated in the hands of the Lord Advocate. The criticism is not that the current or any other Lord Advocate has abused his position. A distinguished authority for that view is the present Lord Justice Clerk who said in his Opinion on the Starrs & Chalmers case about appointment of temporary Sheriffs that and I quote "There is no question whatever as to the integrity and fair-mindedness with which the Lord Advocate has acted". I would like to echo these sentiments in respect of all that the Lord Advocate has done in the field of permanent appointments to the Supreme Court and Shrieval Bench. However, there is a view that it is inappropriate that the Lord Advocate who is head of the prosecution service in Scotland should exert such influence over the appointment of Judges when in due course the Lord Advocate or his advocate deputes will be appearing before them in Court.

I have to say that, since taking office, I have seen no evidence of individual appointments in Scotland being made on any other basis than merit. Nor am I aware of any instance where Ministers including the Lord Advocate have sought to exert undue influence. But it was an early decision in our first Programme for Government to give a commitment to consult on the case for change. With this in mind, I launched a consultation paper Judicial Appointments an Inclusive Approach in April 2000. The paper itself proposed that there should be a Judicial Appointments Board and there was very strong support for this from amongst those who responded. Ministers have spent some time reflecting on the range of views which we received but we now think it is time to move forward. So I am pleased to announce for the first time today that the Scottish Executive intends to establish a Judicial Appointments Board. This new Board will have responsibility for recommending candidates for judicial appointment to the First Minister. This is a radical departure for the judicial appointments system in Scotland but I am convinced that this is a major step forward in creating a more open system.

An independent Judicial Appointments Board will provide the three 3 main objectives I want to see achieved by our judicial appointments system: firstly a system that appoints the very best candidates to the Bench. Secondly a system that is independent of undue influence from the executive. Finally it is not only enough that we have a fair and independent system that appoints the best people to judicial office – that system must also be seen to be fair and independent by society at large. To achieve that we need some transparency in the system.

I expect the Board to be in place by the autumn of this year. We propose to legislate to put it on a statutory footing. We will need to find a slot in the programme and that will take time. So in the first instance it will operate on an administrative basis but with its full powers and responsibilities. A year or so of operating in this way will help to guide us on the terms in which we should legislate later.

So how will the Judicial Appointments Board operate? Well for a start, the Board will be expected to follow best practice for carrying out the selection process. I am not going to spell out here and now all the finer points of the selection process and anyway some aspects require further consideration. In general it will be for the Board itself to determine its procedure once it is up and running and I would not wish to pre-empt the wishes of the members of the Board. However we will require some basic procedures for selection processes to take place. The Board will be responsible for the recruitment of Supreme Court Judges and all shrieval posts, including part-time posts. All posts, including those for Supreme Court Judges, will be advertised. All candidates for appointment will have to make application to the Board. There will be interviews and references will be taken before recommendations are made.

Introducing more transparent procedures does not mean that there will not be strict adherence to the principle that applications for judicial appointment will be kept strictly confidential. Many of the people who responded to the consultation paper stressed the need to keep applications confidential and were concerned that increased transparency in the system would mean that the names or details of applicants could become public knowledge. They have good reason for concern. I think most of us would want something such as a job application to be kept confidential, although that is not a luxury politicians enjoy! But clearly in sections of the legal profession the knowledge or even rumour that an individual was considering leaving legal practice to become a Sheriff or a Judge could have an adverse effect on that person's business. This is not something we would wish to happen. The procedures of the Judicial Appointments Board will be open and transparent but individual applications will be subject to strict confidentiality.

So who will be on the Board? This is a question that exercised the minds of those who responded to the consultation paper and indeed which has exercised me. The number and background of those who make-up the Board will be of the greatest importance. I am firmly of the view that there should be significant involvement from individuals from outside the legal profession. For that reason I have decided that the Board will be chaired by a senior non-legal figure. The membership will be made up of equal proportions of legal and lay members. The legal members will include both members of the judiciary and members of the legal profession. And there will be, as I have said, significant lay representation on the Board.

Why is it so important to have a substantial lay involvement on the Board? It is legal skills, after all, that are the primary requirement of any good Judge or Sheriff and only those who are legally trained have the necessary expertise to assess these skills. Nonetheless I think there are a number of reasons why substantial lay involvement will bring a positive influence to bear on the appointment process. For a start although first-rate legal skills are a pre-requisite for judicial appointment, the criteria for a good Judge goes much wider.

It is a fact that no explicit criteria for judicial appointments have ever been published in Scotland and this is something we need to remedy. The independent Judicial Studies Committee, under the chairmanship of Lord Ross, have done some very useful work in this area and I am indebted to them for their efforts. We will use their ideas as the source of criteria for appointment which we will publish a little later this year. But most of us can already agree that judicial office calls for a variety of skills and personal qualities. Communication skills, management skills, analytical and intellectual skills have all been suggested as necessary requirements for a Judge and many of these can be tested by lay people as well as by lawyers. For example, legal training is not necessary to assess whether an individual could communicate well with the huge variety of people who pass through a court. The public and the professionals who use our courts must have confidence that the man or woman on the bench has the ability to give them a fair hearing and come to a measured decision.

Lay people will also bring a different experience and perspective to the appointments process. I envisage that the legally qualified members will testify to the legal ability of the individual candidates and indeed one of the safeguards of the system will be that the legally qualified members of the Board are satisfied that a candidate has the requisite professional competence. For our lay membership we will be looking for individuals who have experience of selecting people in other areas of public or business life. The lay membership will help to instil public confidence in the selection procedure. It was clear from the consultation exercise that there was real concern that a Board dominated by lawyers might not produce a sufficiently well-balanced outcome. I firmly believe that a Board which comprises both legally qualified and lay membership will deliver results in which all concerned can have confidence.

The Judicial Appointments Board will be expected to have regard to how representative the Bench is of Scottish society and how to encourage applications from under-represented groups. It is not my role to specify exactly how the Board should undertake its remit, but it will be expected to seek out more qualified women and members of ethnic minorities to serve on the Bench. However, having stressed the importance of diversity let me be quite clear that the over-riding consideration is that all appointments to the Bench must be made on merit. Only the best-qualified candidates will taste success in acquiring this most important of public appointments. Finally I want to turn to one of the most important attributes of the Board, that is its independence from the Executive. Politicians will still have a role to play of course. The Scotland Act gives the First Minister the responsibility of recommending names for appointment to the Queen. The Executive will also be responsible for appointing the lay members of the Board, after public advertisement. But the Board will operate on an independent basis and offer a ranked list of names to the First Minister who will consult the Lord President, as he is required to do by the Scotland Act 1998. The First Minister will be expected to adhere to the Board's advice in his recommendations unless there is a compelling reason to the contrary.

The Lord Advocate and the Solicitor General will still have a role to play but it will take the form of providing advice to the Board on those candidates known to them. It will then be for the Board to weigh all the factors before it and then make recommendations to the First Minister. Only in any cases where the First Minister had genuine uncertainties about the Board's recommendation would he consider seeking the advice of his Ministerial colleague, the Lord Advocate.

Before leaving the subject of political involvement I would like to lay one particular rumour to rest, that of the testing of candidates by the Scottish Parliament. This refers to the type of confirmation hearings which take place in other jurisdictions, notably the United States, whereby members of the legislature have a right to question prospective Judges prior to their appointment. The Executive was opposed to such a measure from the outset. It was raised in the consultation document to test the view of interested parties to such a system and I am pleased to say that there was extremely strong opposition to it. I can therefore say categorically that candidates for judicial office will not be tested by the Scottish Parliament.

Let me conclude by suggesting to you that this is a very significant day for the future of the Bench in Scotland. We are opening up to public scrutiny and involvement an aspect of public life which has been conducted in a largely secretive way for many generations. I repeat the view that I do not for a minute suggest that the quality of the Scottish Bench has suffered as a result of the system of appointment which we have had these many years. We have been very well served by our judiciary whose international reputation for fairness and thoroughness was most recently enhanced by their handling of the Lockerbie bombing trial. But there is no case for exempting judicial appointments from the philosophy of openness and public involvement in Government which the Scottish Executive wants to foster wherever it can. This new initiative will make a real contribution to that process and I hope that some of you will in due course be beneficiaries of what I have announced to you today.

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