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Strengthening Judicial Independence in a Modern Scotland

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Chapter 6
Judicial Appointments

6.1 At the time of devolution, the way judges of the Court of Session, sheriffs principal and sheriffs were appointed was set out in statute for the first time. Section 95 of the Scotland Act 1998 11 provides that the First Minister will make recommendations to The Queen for the appointment of a judge of the Court of Session, sheriff principal and sheriff. 12 Before making the nomination, the First Minister must consult the Lord President. Where the two most senior judicial appointments are concerned, that is the Lord President and the Lord Justice Clerk, the First Minister makes his nomination to the Prime Minister who submits the formal recommendation to The Queen. However, the Prime Minister may not recommend a name that has not been nominated to him by the First Minister. And before the First Minister makes that recommendation the Lord President and the Lord Justice Clerk must be consulted, unless in either case the office is vacant. Views will be invited on whether there is a role for the Judicial Appointments Board in advising the First Minister on candidates for the two most senior posts (see paragraph 6. 34 below).

6.2 Following a consultation during the summer of 2000, 13 we established the Judicial Appointments Board on an administrative basis in 2002. The Board was given the following remit:

  • to provide the First Minister with a list of candidates recommended for appointment to vacancies for judge of the Court of Session, sheriff principal, sheriff and part-time sheriff;
  • to make such recommendations on merit, but in addition to consider ways of recruiting a judiciary which is as representative as possible of the communities which they serve;
  • to undertake the recruitment and assessment process in an efficient and effective way.

6.3 When announcing the setting up of the Board, we said that after a period of operating on an administrative basis the Board would be placed on a statutory footing. 14 Since 2002 the Board has made recommendations for appointment to the offices of judge of the Court of Session, sheriff principal, sheriff and part-time sheriff. We have accepted all these recommendations. The Board has an equal number of lay and legally qualified members, with a lay member as the Chair. The Chair does not have any form of casting vote. We believe the balance of lay and legal membership is a particular strength of the present arrangements and we have no plans to change this.

6.4 In establishing the Board on a statutory basis, we propose to legislate on the following matters.

Title, Organisation, Remit and Guidance

6.5 The board will be called "The Judicial Appointments Board for Scotland".

6.6 The Board will operate independently of the Executive, and have its own support staff. It will remain an advisory body only, with a duty to make written recommendations to the First Minister. Where the First Minister rejects a recommendation, he will give the Board his reasons in writing.

6.7 We do not propose to frame the Board's remit in statute. We favour an approach that allows flexibility should the role of the Board develop and change over time.

6.8 As we have indicated the Board will operate independently. Members will be free from any interference when making decisions about which candidates to recommend for appointment. However we feel it is consistent with the principle of independence that Ministers should be able to issue guidance to the Board about the performance of its functions. There may be issues of public policy which Ministers wish the Board to take into account in its work. These may include, for example, the encouragement of diversity in the range of persons available for selection, and the identification of persons willing to make themselves available for selection. Guidance offers a means of dealing flexibly with issues of public policy, which may change in emphasis over time, whereas the structure of a statutory provision could be unduly restrictive. However it will be important that any guidance issued does not undermine the independence of decision making which we intend the Board to have. Accordingly, before issuing guidance Ministers will be under a duty to consult the Lord President. Any guidance issued will be published.

Question 22 Do you agree Ministers should have power to issue guidance about procedures for the performance by the Board of its functions?

Question 23 If so is there any area of Board activity that you would wish to see covered by a specific power to issue guidance?

Question 24 Should the Board be bound by statutory provision to follow any guidance issued by Ministers?

6.9 Later in this Chapter we seek views on whether the Board should have a role in appointing to the Inner House of the Court of Session and to the office of temporary judge of the Court of Session.

Membership

6.10 The equal balance of legal and lay membership will be maintained. The Chair will be a lay person, but with no casting vote in disputed matters.

6.11 There are alternative proposals for the number of members. The first is that the present administrative arrangement will be followed, that is a board of ten made up as follows:

a serving judge of the Court of Session;

a serving sheriff principal;

a serving sheriff;

a practising advocate;

a practising solicitor;

five lay members.

6.12 There is a group whose members do not fall within any of these descriptions. These are the academic lawyers, who do not practise as advocates or solicitors. The present arrangements allow academic lawyers to be considered for lay membership of the Board. While there is a question as to whether such lawyers should have any responsibility for determining the legal ability of candidates (see paragraph 6.23), their knowledge and experience generally may be entirely relevant to the task of the Board, and we would not wish to exclude the possibility of such an appointment being made. We will therefore provide that those in this group will be eligible for lay membership of the Board.

6.13 We are aware of views that membership of the statutory board should include two judges of the Court of Session: one from the Outer House, and one from the Inner House. The alternative proposal is therefore that membership of the Board should be twelve:

two serving judges of the Court of Session;
a serving sheriff principal;
a serving sheriff;
a practising advocate;
a practising solicitor;
six lay members.

6.14 There are a number of possible advantages in increasing membership in this way. Having two judges on the Board would provide additional assurance in the assessment of a candidate's legal ability and fitness for judicial office. Furthermore, increasing the number of legal members on a board that draws candidates from a small profession, in which candidates, especially those for the office of judge of the Court of Session, will be known, often well known, to members, offers greater reassurance of objectivity, the views of one judge being balanced by those of his or her judicial colleague. Having a judge with current experience of the first instance work of the Court and one, a more senior judge, whose role is essentially that of an appellate judge would broaden the perspectives from which candidates for the office of judge of the Court of Session could be assessed. The presence on the Board of a sheriff and sheriff principal provides this for those seeking appointment to the shrieval bench.

6.15 On the contrary are arguments that an additional judge is unnecessary as any undue affinity with a particular candidate would be tempered by the other judicial members of the board. Adding an additional judge would require to be balanced by the addition of a sixth lay member, although this might be helpful in broadening the diversity of the Board.

Question 25 Should membership of the Board include one judge of the Court of Session or two judges: one from the Inner House and one from the Outer House?

Changes to the statutory numbers by order

6.16 We propose to build in flexibility to alter the statutory number of members should the workload of the Board warrant this. Situations may arise, for example, when the Board is asked to deal with a large number of appointments, and we would not wish that process to be hampered owing to limitation on membership. We anticipate a reduction in the membership being less likely. A fall in the workload of the Board would simply result in a reduction in the commitment on the members. We propose therefore to take power to alter the statutory membership of the Board, permanently or temporarily. Any such power would be exercised by statutory instrument, a draft of which had been approved by the Scottish Parliament. The terms of any instrument would ensure the equal balance of lay and legal membership was maintained.

Arrangements for making appointments to the Board

6.17 We propose that the Board itself will be appointed partly by nomination and partly by public advertisement. All appointments will be made by Scottish Ministers. Appointment of the Court of Session judge, or both judges if the twelve member option is preferred, could be made on the recommendation of the Lord President; alternatively the judges could be elected by their respective peer groups. The judges of the Inner House would elect one of their number; the judges of the Outer House doing likewise. If this second option were adopted the result would be that none of the members of the Board would be a nominee of any office holder. This could enhance public confidence in the Board's independence. Appointment of the sheriff principal would be on the recommendation of the Sheriffs Principal collectively, through their convener for the time being. Vacancies for the sheriff, the advocate, the solicitor and the lay members would be publicly advertised. A selection panel would be established by Ministers to interview candidates for appointment to the Board. The process would adhere to the Code of Practice for Ministerial Appointments in Scotland issued by the Commissioner for Public Appointments. 15

6.18 The first appointments to the Board were for a period of three years; subsequent appointments and renewals have been for two years, in anticipation of the Board's moving onto a statutory basis. Experience is that a three year term is right and we would propose that the term of appointment will be for a period of three years, with the option of one renewal for up to a further three years. The term of renewal would be fixed by Scottish Ministers, after consultation with the Chair of the Board, and would have regard to the need to avoid a significant proportion of the membership demitting office at the same time.

Question 26 Should the judge or judges appointed to the board be nominated by the Lord President, or elected by their respective peer groups?

Question 27 Do you agree with a proposed term of appointment of three years, and with the arrangements for renewal?

Question 28 If you do not agree, what term of appointment, and arrangements, if any, for renewal would you wish to see in place?

Arrangements when a judicial member retires during term of appointment to Board

6 .19 We will also welcome views on whether any special provision is required in the event of retiral of judicial members from their full time office during their term of appointment to the Board. We recognise that it could be disruptive to the functioning of the Board if such a member were required to demit membership of the Board immediately on his or her retiral from the Bench. On one view the member could simply continue to serve on the Board until the expiry of the term of appointment. Where that period was short, say up to six months, this might be an entirely satisfactory arrangement. A longer period that resulted in the retired judicial office holder making appointments to a Bench that he or she had left some time before may be less satisfactory. If it were considered that a time limit should be placed on the continuing service of such a judge, six months would seem right.

Question 29 Do you consider that provision should be made restricting the continuing membership of a judicial member of the Board on his or her retiral from full time office?

Question 30 If so, do you agree with our proposal or what other arrangements would you wish to see in place?

Disqualification

6.20 Any member wishing to apply for any post that is the subject of an appointment exercise being conducted by, or under the auspices of, the Board must resign from the Board before submitting an application for the post.

Resignation

6.21 A member may resign from his or her membership of the Board at any time.

Fees and expenses of members

6.22 Members will be entitled to payment of such fees and expenses as Ministers may determine.

Responsibility of legally qualified members

6.23 The legally qualified members of the Board will have the responsibility for determining that the legal ability of individual candidates is adequate for the purposes of the judicial office applied for. On one view the legally qualified members should include only the judicial members of the Board and the two practising lawyers. This we understand is the approach currently taken by the Board. Another view recognises the expertise of any academic lawyer on the Board and would not exclude him or her from the assessment of legal abilities. We have an open mind on this, and would invite views.

Question 31 Do you agree that only the judicial members and two legal members of the Board should have a duty to determine whether the legal ability of a candidate is adequate for the judicial office applied for, or should any academic lawyer on the Board participate in this process?

Question 32 If you do not agree with either option in Question 31, what arrangements should there be for assessing the legal ability of candidates?

Arrangements in the event of absence of a member owing to ill health or other cause

6.24 Occasions may arise when a member of the Board is unable to attend to Board business owing to ill health, incapacity or other temporary cause of significant duration. We would propose to take power to fill such a vacancy on a temporary basis when that was necessary to maintain the functioning of the board. A request to make a temporary appointment would be made by the Chair of the Board, or in the event that the Chair himself or herself was absent, the most senior judicial member. The arrangements for filling the vacancy would be discussed with the Commissioner for Public Appointments. Before making a temporary appointment, Ministers would be under a duty to consult the Chair of the Board, or the senior judicial member as the case may be, and, when the temporary appointment related to one of the judicial members of the Board, the Lord President, before making an appointment.

6.25 The temporary appointment would be for a period of up to six months, and Ministers would have power to extend the appointment to the conclusion of a specific appointment exercise which had not been concluded when the six month period expired. If the member whose absence was being covered by the temporary appointment was still absent at the expiry of the six month period, the member would be susceptible to removal under the proposals discussed in paragraph 6.27 below. On removal the procedure for filling a substantive vacancy would begin.

Question 33 Do you agree that provision should be made for the appointment of a temporary member to cover long term absence of a member?

Question 34 If so, are you content with our proposals or what other arrangements would you wish to see in place?

Conduct of Board Members

6.26 Society's confidence in its judges begins with its having confidence in the appointment process. We are committed to ensuring the highest standards from those who sit on our public bodies and in establishing the Board on a statutory footing we propose to require the Board to draw up a code of conduct for its members based on the model code of the Standards Commission for Scotland 16. This will ensure the public can have the highest confidence in the way the Board conducts itself.

6.27 Provision will be made authorising Ministers to remove any member from the Board if they are satisfied that the member:

  • has failed without reasonable excuse to discharge the functions of his or her membership for a continuous period of six months,
  • has been convicted of an offence,
  • is an undischarged bankrupt, or
  • is otherwise unfit to hold membership of the Board or unable to discharge the functions of membership.

6.28 Before removing a member Ministers will be required to consult the Chair of the Board, and where the member is one of the judicial members, the Lord President.

Question 35 Are there any changes you would wish to see made to the list of proposed grounds for unfitness?

Confidentiality

6.29 The Board's proceedings will be conducted in private. All papers concerned with applications for appointment will be held by the Board in confidence. The Board will be responsible for its own policy concerning the retention and disposal of Board papers. In addition to these practical arrangements, we are proposing to include in the Board's statutory framework a positive duty of confidentiality, actionable in the event of breach. Those who may wish to seek appointment to judicial office need to be confident that knowledge of any application they may make, and information that comes to the notice of the Board through its consideration of any application, will not be disclosed. This is especially important in the professional context within which the Board is operating. We understand there is a perception that should it become known that an individual has applied for a judicial appointment, that in itself could have a detrimental effect on that individual's legal practice. And were such knowledge to be complemented by the fact of non-appointment, the consequences could be more significant. We need to ensure able candidates are not dissuaded from applying for office owing to concerns about the confidentiality of the process. We propose therefore to impose a statutory duty of confidentiality on those who give and obtain information about an individual within the context of the Board's activities. We note this approach has been adopted in England and Wales 17.

Question 36 Do you agree a duty of confidentiality should be imposed on those who give and obtain information about an individual within the context of the Board's activities?

Annual Report

6.30 Under the current administrative arrangements, the Board produces an annual report which is submitted to Ministers and laid before the Scottish Parliament. 18 We propose that this should be a requirement of the statutory framework.

Complaints

6.31 The present Board consider that a complaints process should be put in place. This would be open to any candidate who had a complaint about the way the Board had applied its procedures during the appointments and interview process. The complaints process would not be a mechanism for appealing against the decisions of the Board, but a means of exposing issues about the way the Board operated. Where a complaint was well founded, lessons could be learned and the Board's processes developed and improved. Organisations grow and improve through learning from the views of those who have used their services, and we would see an arrangement under which the Board investigated complaints as a positive way of securing continuous improvement of the appointments process. We would propose 151617therefore to create a duty on the Board to establish a complaints procedure.

6.32 Establishing a complaints procedure to be operated by the Board raises the question of independent review. A complainant, aggrieved by the way his or her complaint has been handled by the Board, should have a way of asking that the process be reviewed by someone independent of the Board. This would not be an opportunity to appeal, but a means of exposing deficiencies in the process.

6.33 On one view there is already an independent body who could consider the kind of complaint we envisage falling under the complaints procedure. This is the Scottish Public Services Ombudsman. 19 We are aware that in England and Wales a separate Ombudsman, to be known as the Judicial Appointments and Conduct Ombudsman, is being established. The arrangements in England and Wales are different from those in Scotland. Firstly, the appointments scheme established under Part 4 of the Constitutional Reform Act 2005 20 is broader in scope than that proposed for Scotland, and, of course, there are considerably more appointments made in England and Wales, which is a much larger jurisdiction. Secondly, under the scheme south of the Border the Ombudsman is also to have a role in matters of judicial conduct. The relatively modest number of appointments made by the Board in Scotland is unlikely to generate a significant number of grievances, and it must be questioned therefore whether establishing a separate ombudsman for this specialist area would be a justifiable burden to add to public expenditure. On balance therefore we favour allowing the Scottish Public Services Ombudsman to provide the independent review. A complaint alleging that a member of the Board had breached the Board's code of conduct would fall to the Commissioner for Standards: see paragraph 6.26 above.

Question 37 Do you agree that there should be a procedure to deal with complaints about the way the Board applied its procedures during the appointments and interview process?

Question 38 If so, do you agree that the Board should set up a complaints scheme and that independent review should fall to the Scottish Public Services Ombudsman?

Offices of Lord President and Lord Justice Clerk

6.34 The arrangements for appointing to these offices are set out in section 95 of the Scotland Act 1998. 21 This provides that it is for the Prime Minister to recommend to The Queen the appointment of a person as the Lord President or the Lord Justice Clerk. However, the Prime Minister cannot recommend any person who has not been nominated by the First Minister. Before nominating persons for such appointment, the First Minister must consult the Lord President and the Lord Justice Clerk, unless in either case the office is vacant. Section 95 does not impose any other requirement on the First Minister before he makes his nominations, although sub section (5)(a) of that section provides that he shall comply with any such requirements that are imposed by any enactment. A question that arises is whether the opportunity of legislation about judicial appointments should be taken to require the First Minister to establish a panel to advise on candidates for selection before nominating for appointment to these posts.

6.35 We do not propose to extend the remit of the Board to include these two posts. The proposed membership of the Board includes a serving judge from each tier to which the Board makes recommendations for appointment. We believe this is a strength of the proposals as the assessment of candidates can be informed by the experiences of a judge serving at the level to which the candidate aspires. It is unlikely that any of the Board will hold, or have held, judicial office at the highest level, so another arrangement is required for assessing candidates for the two highest judicial offices. When the Lord Cullen of Whitekirk announced his intention to retire from the office of Lord President, the First Minister appointed a panel to consider expressions of interest in appointment to this post, to meet candidates and to provide the First Minister with a report on the suitability of each person for appointment. The panel comprised two senior judicial figures, who were not members of the Judicial Appointments Board, and the Chair and a second lay member of the Board. 22

6.36 Our preliminary view is that establishing such a panel as a statutory requirement for the First Minister to follow would strengthen the appointment process. The panel would function under the auspices of the Judicial Appointments Board, and be chaired by the Chair of the Board, or a lay member of the Board on the Chair's nomination. The second member would be a lay member of the Board. We would propose that the panel should have two further members drawn from the senior judiciary. There are a number of options for the judicial membership. We outline these below, and invite views.

6.37 The judicial membership of the panel would be influenced by the view taken on a number of issues of principle. We have proceeded on the basis that a person would be disqualified from membership of a panel if he or she expressed interest in selection for the post. There are two other considerations. The first is whether it would be appropriate for the panel to include the current holder of the office for which a successor was being sought. The second is whether it would ever be appropriate for membership to include a person holding a judicial office lower in rank to that office. On the first of these considerations, our feeling is that it would not be appropriate for the current holder of the office to be a member of the panel. We recognise that practical knowledge of the post would not be irrelevant, but the panel's remit is focused on the future and, on balance, we feel that this favours disqualifying the current office holder. We note that this approach is followed in England and Wales. 23 On the second issue, a situation where, say, an Inner House judge sits on a panel and expresses views on the suitability of certain of his fellow judges for appointment to the office of Lord President or Lord Justice Clerk seems not entirely satisfactory. There may be less objection to the Lord Justice Clerk's sitting on a panel concerned with the post of Lord President. The Lord Justice Clerk would be eligible to sit on the panel only if he or she were not a candidate for the post. Having no personal interest in appointment to the post, the Lord Justice Clerk's focus would be on the future development of the justice system. And the office is recognised as senior to that of the other judges. However, an external observer of the process might still question the appropriateness and complete objectivity of an arrangement in which the second most senior judge had a potential influence over the appointment of the most senior judge.

6.38 The judicial membership for a panel concerned with the post of Lord Justice Clerk is in some respects the easier. We would propose that the senior Scottish Lord of Appeal in Ordinary should be a member of the panel along with the Lord President. If either were unable to participate, or the office vacant, the second Scottish Lord of Appeal in Ordinary should take the place. Provision would be required to deal with a situation where it was not possible to secure members from among the Scottish Lords of Appeal in Ordinary and the Lord President. Provision might be made to appoint a retired holder of high judicial office, although this raises similar issues to those discussed earlier on the eligibility of the current office holder. It may be that the most senior Inner House judge, who had no interest in appointment to the post, provides the last resort. An alternative to this would be a judge elected for the purpose by the body of Court of Session judges. On another view the likelihood of its being impossible to constitute a panel from among the two Lord Lords and the Lord President is, in practice, remote. On this view all that might be required is a discretionary power as to the constitution of the panel in such circumstances. We welcome views.

6.39 The judicial members of a panel concerned with the office of Lord President would, for the reasons we have outlined above, comprise at least one of the two Scottish Lords of Appeal in Ordinary. The other judicial member might be the other Scottish Lord of Appeal in Ordinary, or another senior judicial figure. The earlier comments on who might substitute if it were not possible to constitute a panel are again relevant. Where the Lord Justice Clerk of the day had expressed no interest in being selected for the office, he or she might be an appropriate appointment of last resort. However, it may be sufficient merely to provide a discretionary power as to the constitution of the panel where the Scottish Lords of Appeal were unavailable. We welcome views.

Question 39 Should provision be made for a panel to advise the First Minister on the suitability of candidates for selection to the office of Lord President and Lord Justice Clerk?

Question 40 If so, what provisions should be made to regulate the membership of the panel (a) concerning the office of Lord President, and (b) that of Lord Justice Clerk?

Judges of the Inner House of the Court of Session

6.40 Section 2(6) of the Court of Session Act 1988 24 provides that appointments to the Inner House of the Court of Session be made by the Lord President and the Lord Justice Clerk after such consultation with judges as appears to them to be appropriate in the particular circumstances. The consent of Ministers is required, but this is not withheld when they are satisfied that the state of business in the Inner House requires the vacancy to be filled. 25

6.41 Judges appointed to the Inner House need to have the necessary skills and attributes for fulfilling an essentially appellate role. The present arrangement provides a mechanism for assessing this. Assessment and appointment lie in the hands of the judiciary, the Executive's involvement being restricted to considerations of workload. However, appointment to the Inner House brings a permanent increase in salary, and is therefore more than a mere deployment; it has the quality of a promotion to higher judicial office. It could be argued therefore that the current arrangements lack the elements of equality of opportunity and transparency of process found in other judicial appointments. We recognise the importance of the involvement of the Lord President and Lord Justice Clerk, as the presiding judges in the two Divisions, in the selection process. Placing these appointments within the remit of the Judicial Appointments Board does not therefore seem appropriate. However, we would welcome views on whether selection for promotion to the Inner House should be informed by broader consideration than presently provided for.

6.42 One option would be to constitute a panel to consider applicants for appointment to any vacancy in the Inner House which Ministers have agreed should be filled. The panel would be under the auspices of the board and chaired by the Chair of the Board, or his or her nominee. Membership would include the Lord President and the Lord Justice Clerk and a lay member of the Board. We would welcome views on whether a Court of Session judge who was a member of the Board and who wished to be considered for appointment to the Inner House would be required to resign from the Board, or whether another arrangement would be appropriate in the circumstances of an Inner House appointment.

Question 41 Should appointments to the Inner House of the Court of Session be (a) within the remit of the Board, or (b) informed by a panel under the auspices of the Board?

Question 42 If a panel under the auspices of the Board is favoured, what would be the membership of the panel?

Question 43 If a judge of the Court of Session who is a member of the Board wishes to be considered for appointment to the Inner House, should he or she require to resign from the Board, or would another arrangement be acceptable in the circumstances?

Temporary Judge of the Court of Session

6.43 In Chapter 11 we propose a number of changes to the statutory arrangements for this judicial office. We include in that chapter discussion on whether recommending for selection to this office should fall within the remit of the Judicial Appointments Board.