Stage 1 Report on the Judiciary and Courts (Scotland) Bill

Remit and membership
Report
INTRODUCTION
BACKGROUND AND CONSULTATION
EVIDENCE RECEIVED BY THE COMMITTEE GENERAL
JUDICIAL INDEPENDENCE
THE JUDICIARY
LORD PRESIDENT / LORD JUSTICE CLERK: VACANCY, INCAPACITY AND SUSPENSION
THE JUDICIAL APPOINTMENTS BOARD FOR SCOTLAND
JUDICIAL CONDUCT
THE COURTS
THE SCOTTISH COURT SERVICE
ISSUES RAISED BY OTHER COMMITTEES
CONCLUSIONS

ANNEXE A: REPORTS FROM OTHER COMMITTEES
Subordinate Legislation Committee Report on the Judiciary and Courts (Scotland) Bill at Stage 1

ANNEXE B: FINANCE COMMITTEE’S CONSIDERATION OF THE FINANCIAL MEMORANDUM
Letter from the Convener of the Finance Committee

ANNEXE C: EXTRACTS FROM THE MINUTES
11 March (7th Meeting, 2008 (Session 3))
18 March (8th Meeting, 2008 (Session 3))
25 March (9th Meeting, 2008 (Session 3))
22 April (10th Meeting, 2008 (Session 3))
29 April (11th Meeting, 2008 (Session 3))

ANNEXE D: ORAL EVIDENCE
7th Meeting, 2008 (Session 3), 11 March 2008

Oral Evidence

The Rt Hon Lord Hamilton (Lord President and Lord Justice General)The Hon Lord Hodge
Michael Anderson (Legal Adviser to the Lord President)
The Rt Hon Lord Osborne
The Rt Hon Lord Reed
Sheriff Robert Dickson, President of the Sheriffs’ Association
Sheriff Michael Fletcher, Vice-President of the Sheriffs’ Association
Alan McCreadie, Deputy Director of Law Reform, Law Society of Scotland
George Way, member of the Council of the Law Society of Scotland
Richard Keen QC, Dean, Faculty of Advocates
Bruce McKain, Director of Public Affairs, Faculty of Advocates
Carole Ferguson-Walker, Solicitor, Faculty of Advocates
Sir Neil MacIntosh, Chairman, Judicial Appointments Board for Scotland
Michael Scanlan, member, Judicial Appointments Board for Scotland

8th Meeting, 2008 (Session 3), 18 March 2008

Oral Evidence

Lord McCluskey
Eleanor Emberson, Chief Executive, Scottish Court Service
Alan Sim, Director of Policy, Scottish Court Service
Ken Brown, Branch Secretary, Scottish Court Service Branch, Public and Commercial Services Union
Eddie Burrows, Branch Learning Representative, Scottish Court Service Branch, Public and Commercial
ervices Union
Brian Carroll, former Branch Chairman, Scottish Court Service Branch, Public and Commercial Services Union
Susan Gallagher, Head of Policy and Research, Victim Support Scotland
Jim Andrews, Head of Community Justice, Victim Support Scotland
Frank Russell, Head of Quality and Audit, Victim Support Scotland

9th Meeting, 2008 (Session 3), 25 March 2008

Oral Evidence

Professor Sir David Edward, KCMG, QC, Honorary Professor of Law, University of Edinburgh
Kenny MacAskill MSP, Cabinet Secretary for Justice
Moira Wilson, Bill Team Leader, Scottish Government
Alastair Sim, Director of Policy, Scottish Court Service

Written evidence is published separately on the Committee’s web‑page at:
http://www.scottish.parliament.uk/s3/committees/justice/inquiries/JudiciaryBill/index.htm

Remit and Membership

Remit:

To consider and report on (a) the administration of criminal and civil justice, community safety, and other matters falling within the responsibility of the Cabinet Secretary for Justice and (b) the functions of the Lord Advocate, other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Bill Aitken (Convener)
Bill Butler (Deputy Convener)
Cathie Craigie
Nigel Don
Paul Martin
Stuart McMillan
Margaret Smith
John Wilson

Committee Clerking Team:

Douglas Wands
Anne Peat
Euan Donald
Christine Lambourne

Stage 1 Report on the Judiciary and Courts (Scotland) Bill

The Committee reports to the Parliament as follows—

introduction

1. The Judiciary and Courts (Scotland) Bill was introduced on 30 January 2008 by Kenny MacAskill, Cabinet Secretary for Justice. The Parliament designated the Justice Committee as lead committee for this Bill. Under Rule 9.6 of the Parliament’s standing orders, it is for the lead committee to report to the Parliament on the general principles of this Bill.

2. The Justice Committee received a report from the Subordinate Legislation Committee and a letter from the Convener of the Finance Committee, following the Finance Committee’s consideration of the Bill’s Financial Memorandum. These are attached as Annexes A and B to this report.

3. All written evidence provided to the Justice Committee is available on the Committee’s webpage.¹

background and consultation

4. The introduction of this Bill follows a programme of reviews and consultations initiated by the previous administration.

5. The three key publications in the development of the Bill’s policy have been Agency Review of the Scottish Court Service, a report by Douglas Osler published in January 2006;² Strengthening Judicial Independence in a Modern Scotland – a consultation on the unification, appointment, removal and management of Scotland’s Judiciary, published by the then Scottish Executive in February 2006;³ and Proposals for a Judiciary (Scotland) Bill published by the then Scottish Executive in February 2007.⁴

6. It is useful to set out briefly the main issues covered by the three documents referred to above, in order both to set the context more clearly for the legislation now under consideration and to reference these documents as appropriate when considering the evidence received by the Committee on the Bill we have before us now.

7. The Agency Review of the Scottish Court Service (the Osler Review) was commissioned by the Scottish Executive Justice Department to report to Scottish Ministers on whether each of the functions exercised by the Scottish Court Service (SCS) continued to be necessary. The report of the Osler Review considered whether Executive Agency status of the SCS continued to be the most appropriate, efficient and effective means for the Justice Department to deliver those functions and whether that structure could meet the demands of its responsibilities in areas such as Departmental policy, future political, environmental, social, technological and legal factors, and meeting stakeholder needs.

8. The report acknowledged that the Summary Justice Reform Programme, an increasing volume of Scottish legislation and legislation made by the UK and European Parliaments, all potentially presented major areas of work and procedural changes for the SCS.

9. Amongst its many recommendations, the Osler Review recommended that the SCS should remain an Executive Agency, that links between the SCS and the judiciary should be improved, that the creation of a structured unified judiciary which could talk on behalf of its members to the SCS, the Justice Department, Ministers, the Scottish Parliament should be pursued, that the strategic and executive functions of the SCS Board should be separated and that further consideration of the relationship between, by then, a unified judiciary with its own management structure and the SCS, should be undertaken in three years time.

10. Strengthening Judicial Independence in a Modern Scotland – a consultation on the unification, appointment, removal and management of Scotland’s Judiciary, published in February 2006, invited views on a range of proposals to strengthen the role of Scotland’s judiciary and reinforce the Government’s commitment to judicial independence thereby modernising and improving the court system. There were five main areas in which change was proposed: the creation of a unified judiciary headed by the Lord President with responsibilities and powers concerning the disposal of business and the training, welfare, deployment and conduct of the judiciary; placing the Judicial Appointments Board on a statutory footing; arrangements for the removal of judges; the introduction of a scheme of discipline for the judiciary; arrangements for retired and temporary judicial office holders; and grounds of eligibility for appointment as a judge of the Court of Session. Governance of the SCS was not covered in this consultation.

11. Sixty responses were received to this consultation and although there was support for many of the proposals, there were also clear differences of view. Responses from the Lord President and judges of the Court of Session in particular sought to move more quickly to review the arrangements for the SCS and to introduce judicial control over the strategy of the service than was envisaged in either the consultation paper or by the Osler Review. Those in support of this said that such a move would strengthen judicial independence by giving the judiciary control over the administrative support structure thus ensuring that the judiciary was able to fulfil the new responsibilities anticipated in the consultation paper.

12. After consideration, Proposals for a Judiciary (Scotland) Bill (the draft Bill) was published in February 2007. The draft Bill took forward the earlier proposals and the desire of the Lord President to become more actively involved in the management of the Court Service by proposing a framework for facilitating participation by the judiciary in the development and operation of the court system. Twenty six responses were received to this further consultation of which more than half were from the judiciary and legal profession. The publicly available responses can be found on the Scottish Government’s website.⁵

evidence received by the Committee

13. Following the Bill’s introduction in late January 2008, the Committee issued its call for evidence in February 2008. Fifteen written submissions were received. The Committee took oral evidence as follows—

11 March 2008

The Rt Hon Lord Hamilton (Lord President and Lord Justice General), the Hon Lord Hodge and Michael Anderson (Legal Adviser to the Lord President),

The Rt Hon Lord Osborne, the Rt Hon Lord Reed, Sheriff Robert Dickson, President of the Sheriffs’ Association and Sheriff Michael Fletcher, Vice-President of the Sheriffs’ Association,

Alan McCreadie, Deputy Director of Law Reform and George Way, member of the Council of the Law Society of Scotland, Richard Keen QC, Dean, Bruce McKain, Director of Public Affairs and Carole Ferguson-Walker, Solicitor, Faculty of Advocates,

Sir Neil MacIntosh, Chairman of the Judicial Appointments Board for Scotland and Michael Scanlan, Board member.

18 March 2008

Lord McCluskey,

Eleanor Emberson, Chief Executive and Alan Sim, Director of Policy, Scottish Court Service,

Ken Brown, Branch Secretary, Eddie Burrows, Branch Learning Representative, Brian Carroll, former Branch Chairman, Scottish Court Service Branch, Public and Commercial Services Union,

Susan Gallagher, Head of Policy and Research, Jim Andrews, Head of Community Justice, Frank Russell, Head of Quality and Audit, Victim Support Scotland.

25 March 2008

Professor Sir David Edward, KCMG, QC, Honorary Professor of Law, University of Edinburgh,

Kenny MacAskill, MSP, Cabinet Secretary for Justice, Moira Wilson, Bill Team Leader, Scottish Government, Alastair Sim, Director of Policy, Scottish Court Service.

General

14. The Explanatory Notes to the Bill state that legislative provisions are being made in four main areas: judicial independence; the judiciary including the Judicial Appointments Board; the courts; and new governance arrangements for the Scottish Court Service. The Bill’s overarching objective is to modernise and improve the court system in Scotland through strengthening the role of the judiciary.

15. Although Stage 1 reports on bills, such as this, are supposed to address the general principles of the legislative proposals, much of the evidence received in relation to this Bill was very specific. For that reason, this report goes into more detail than might otherwise have been expected.

JUDICIAL INDEPENDENCE

16. Part 1 of the Bill, a single section, provides a “Guarantee of continued judicial independence.” It places a duty on the First Minister, the Lord Advocate, the Scottish Ministers and any other persons who have responsibility for matters relating to the judiciary or the administration of justice in Scotland, to uphold the continued independence of the judiciary.

17. Two specific duties are set down: the first on the First Minister, the Lord Advocate and the Scottish Ministers not to seek to influence judicial decisions through any special access they might have to the judiciary; the second on the First Minister, the Lord Advocate and the Scottish Ministers to have regard to the need for the judiciary to have the necessary support to enable them to carry out their functions.

18. Presently in Scotland, the independence of the judiciary is not laid down in statute but is nevertheless recognised as a constitutional principle by convention and in common law. The existing common law makes it a criminal offence to attempt to interfere with the course of justice. The Constitutional Reform Act 2005 (the 2005 Act), UK legislation, imposed duties across the United Kingdom guaranteeing judicial independence but these duties are limited in so far as they relate to Scotland in recognition of the devolved jurisdiction.

19. In response to the changes introduced by the Constitutional Reform Act 2005 setting out a guarantee of independence for judiciary in England and Wales, during 2006 the Scottish Executive consulted on enshrining the independence of the Scottish judiciary in Scottish statute.

20. Responses at that time were mixed; some welcomed the proposal, whereas others were not persuaded that what was being proposed would add anything to the existing common law. Subsequently, when consulting on the draft Bill (the White Paper), the Executive acknowledged the doubts expressed about what a statutory guarantee would add to the present position. Nevertheless, in order to “distil into statute what has long been a matter of convention and common law”⁶ the statutory guarantee was included in the draft bill and in the Bill before the Committee now.

21. The policy memorandum states that “it would be possible to retain the status quo, resting on current conventions, on balance, the Scottish Government concluded that inclusion of a statutory statement underlining its commitment would be a powerful and obvious reminder of the constitutional significance of judicial independence”⁷ and that “the provisions in this Bill are consistent with and complement the UK wide provisions.”⁸

22. Some of those who submitted evidence to the Committee remained unconvinced by the arguments put forward in support of this provision.

23. Sheriff Douglas J. Cusine, in his written evidence, stated—

“there is no need to enshrine in a statute that which is, and has been for over 300 years, a constitutional principle. If there is to be a statutory provision, it can be repealed or amended…the statute as presently framed is inadequate…it is not enough to have a provision which prohibits interference with any particular decision. Logically it follows that there could be interference with general decision-making.”

24. In written and oral evidence Lord McCluskey stated his view that this provision merely “cribbed the 2005 Act” and could never be any more than symbolic because if a government came to power that did not respect democratic values, the legislation would not be worth the paper that it is written on.”⁹

25. Lord McCluskey went on to say that the provisions could in fact narrow the scope of judicial independence because the “so-called duty in the Bill is laid on a very select number of people…and ignores eight or nine ways that I have listed in which judges can be influenced.”¹⁰ He detailed these in a later submission and gave as examples any attempts to intimidate the judiciary as whole: e.g. by reducing pensions or salaries, a Minister requesting that a certain judge is stopped from sitting in a particular case, any attempt to influence the selection of a particular judge or a particular bench of judges to hear cases of particular interest to the person making the attempt: e.g. terrorist cases, human rights cases, or alternatively any attempt to prevent particular judges sitting in the type of case in which the person making the attempt is interested: e.g. tax cases, planning appeals, human rights claims against the Government.

26. The majority of witnesses however were in favour of adding the statutory guarantee of independence to the existing provisions. The Lord President said—

“it is of value as a signal, if nothing more, to have a recognition in legislation of the importance of judicial independence. That is not an empty provision…Although I do not envisage that I shall require to sit on any case that is deciding a legal issue turning upon the construction of those provisions, the existence of them in what I regard essentially as a constitutional document is of importance, in my view, and it sends the right message.”¹¹

27. Lord Osborne agreed saying, “it is my view that one of the purposes of statute law is to declare publicly something that ought to be recognised publicly.”¹²

28. Sheriff Dickson agreed too and commented, “the importance of having section1 as part of statute is that it is a clear declaration of what the vast majority of people – certainly those in authority – know and recognise.”¹³

29. The Rt Hon Lord Reed added, “it is an important statement of principle at a time when a relatively new set of institutions – the Parliament and the Executive – are, for the first time, trying to define in legislation the boundaries and relationships between the different institutions of Government in Scotland.”¹⁴

30. Although supportive of this provision, the Faculty of Advocates said, “if we expect the First Minister, the Lord Advocate and the Scottish Ministers to uphold the continued independence of the judiciary, we might equally expect the Scottish Parliament to do likewise.”¹⁵

31. Sir David Edward agreed that including the Parliament in the list of those who must uphold the continued independence of the judiciary could be useful but said “it is not clear whether the Parliament can put an obligation on itself. I suppose that it could put an obligation on members of the Parliament.”¹⁶

32. There was discussion around the need for the new statutory provision and what, if any, effect it would have on the existing common law criminal offence of attempting to interfere with the course of justice. Neither Lord McCluskey nor Sir David Edward were of the view that the existing common law was displaced.

33. On the point made by Lord McCluskey that the effect of this provision, as presently drafted, might in fact restrict the judiciary by placing specific duties on a certain class of people, Sir David Edward said that he too had a reservation about subsection 1(2)(a) as “this might be taken to imply that the only way in which Ministers might seek to influence judicial decisions is “through special access to the judiciary.” In his written submission he said “there are other and more insidious ways in which Ministers could seek to influence judicial decisions – not least through statements in Parliament or to the press. This could be overcome by inserting the words “In particular” at the beginning of the subsection.¹⁷

34. In his written evidence, Professor Alan Paterson said that in his view the guarantee of judicial independence in the Bill was compatible with the existing common law position. He explained—

“Since the traditional canons of statutory construction suggest that “alteration of the common law is presumed not to be intended unless this is made clear, (particularly if the common law has “deep roots” as the offence of interference with the course of justice undoubtedly does) in my opinion Lord McCluskey was right to state in his oral evidence that s1(2)(a) (even if amended as suggested by Sir David Edward) would not supplant the common law offence of interfering with the course of justice to any significant extent…Like others therefore, I am of the opinion that the primary importance of section 1 is as a symbolic reaffirmation of the constitutional convention of judicial independence. Such conventions influence the culture and practice of executive government and even the wider community.”¹⁸

35. It is interesting to note that in the White Paper, Proposals for a Judiciary (Scotland) Bill the wording used in subsection (2) is slightly different and does in fact say “The First Minister, the Lord Advocate and the Scottish Ministers must, in particular, under subsection (1), not seek to influence particular decisions through any special access to the judiciary.”

36. In his evidence to us, the Cabinet Secretary stated that this provision—

“is more than simply symbolic. However, at the outset, I would like to state that symbolism has a place in the courts and should not be underestimated. We believe that the Bill is of constitutional significance and that enshrining in it the principle of judicial independence will help to ensure judicial independence. The Bill adds value to the currently accepted common law position by reiterating it.”¹⁹

37. Responding to the suggestion that the Parliament itself should be included in those bound by the provision, the Cabinet Secretary said—

“we are genuinely open-minded on that matter. Our position is that, to some extent, there is a difficulty about whether Parliament can bind itself in a way that is separate from the way in which it is bound by others. We are happy to consider arguments and views around the issues.”²⁰

38. And in response to the view that the section was generally too narrowly drawn, again the Cabinet Secretary advised that he was happy to reflect on that, but added—

“we take the view that things can be construed liberally enough to ensure that there are no difficulties when there are sensible interfaces and discussions, and that the clear view that no attempt should be made to lean on people or influence them inappropriately will not be undermined.”²¹

39. The Committee recognises the constitutional importance of this legislation and agrees that judicial independence is imperative. Setting out in statute a guarantee of continued judicial independence is important symbolically and should be seen as complementary, not inimical, to existing common law. The Committee notes the Cabinet Secretary’s undertaking to reflect on whether this section is too narrowly drawn and to refer the question of whether any amendment to the Ministerial Code is required to the relevant authorities. The Committee looks forward to hearing from the Scottish Government in this regard.

40. The Committee therefore welcomes the provisions in part 1 of the Bill but requests that the Scottish Government consider the suggestion that members of the Scottish Parliament be included amongst those who are specifically required to uphold the independence of the judiciary.

THE JUDICIARY

Head of the Judiciary
41. Section 2 of the Bill unifies the judiciary under the Lord President bringing the leadership and administrative arrangements for the disposal of business in Scotland’s courts formally under a single judicial head. The Policy Memorandum states that “the Bill confers a range of powers and responsibilities on the Lord President. Many of these relate to functions that the Lord President has traditionally carried out, some to functions currently carried out by the Scottish Ministers.”²²

42. The Explanatory Notes state “those responsibilities and functions are: the efficient disposal of business in the Scottish courts; representation of the views of the Scottish judiciary to the Scottish Parliament and to the Scottish Ministers; the laying of written representations before the Parliament on matters of importance relating to the Scottish judiciary or to the administration of justice in Scotland; the welfare, training, guidance of judicial office holders; and establishment and operation of a conduct scheme for the judiciary.”²³

43. Subsection 2(3) gives the Lord President a power of direction over sheriffs principal in relation to administrative matters but does not allow the Lord President to give a direction in relation to the judicial decision.

44. The Lord President may delegate certain of the functions given to him, although he may not delegate his duty of making and maintaining arrangements to secure the efficient disposal of business in sheriff courts or justice of the peace courts, or his duty to make rules for the judicial conduct scheme.²⁴

45. Most of the evidence received by the Committee was supportive of the proposal to unify the judiciary in Scotland under the Lord President and to give him the relevant functions and responsibilities.

46. In his written response however, Robin White JP commented—

“In the past, the Scottish judiciary has not been very hierarchical. While Lords Ordinary might expect to enter the Inner House in time, there has been no career path. Unlike the position in some countries, judges are not appointed at an early age in a small court, with the hope of working their way up. Thus, the shrieval bench has not been a spring board for the Court of Session bench. This has been thought to assist judicial independence as judges did not have to seek promotion. What is proposed in these sections is clearly not seen as a step in that direction. However the very idea of a clear hierarchy, headed by the Lord President, is a considerable novelty.”²⁵

47. Lord McCluskey said that clearly the Lord President is and has been the head of the Scottish judiciary but to confer on the Lord President the new statutory title of Head of the Scottish Judiciary, “adds very significantly to the burdens already resting on him…the only saving grace is the Bill’s acceptance of the Lord President’s right to delegate certain functions.”²⁶

48. The Lord President welcomed the proposals, saying they would bring—

“many benefits for the administration of justice in Scotland. They will enable the Lord President to speak on behalf of the whole judiciary and thereby help the judiciary play a full and co-ordinated role in the development of proposals for improving the administration of justice. They will enable the matter of the efficient disposal of business in the Scottish courts to be addressed strategically in a way which takes account of the operation of the whole system rather than on a piecemeal basis; and which should therefore enable judicial resources to be directed to where they are needed.”²⁷

49. The Lord President was asked how he envisaged dividing his time between administrative and judicial functions and responded by saying—

“It is plain that, as you say, the Bill envisages the Lord President being involved in a wider range of responsibilities than has been the case hitherto, but it should be borne in mind that, prior to the introduction of the Bill, the Lord President already had a range of administrative responsibilities in his work.”²⁸

50. The Lord President continued—

“I regard it as of the first importance that the senior judge in Scotland should be seen plainly as performing a judicial function. Therefore, I regard sitting on the most important cases as a prerequisite to the fulfilment of my position as Lord President in the Court of Session and Lord Justice General in the High Court of Justiciary.”²⁹

51. The Lord President did not feel that he could put a percentage on the amount of time he expected to spend in court compared with the amount of time he would spend on administrative matters. Based on the Irish system however, he had formed the view that his work with the SCS would take maybe two days a month and that a substantial amount of his time would still therefore be spent sitting in court, deciding cases, rather than administering.³⁰

52. The Committee noted carefully the evidence from the judiciary and the Lord President in support of unification of the judiciary and a much wider range of administrative and organisational responsibilities being given to the Lord President. The Committee also noted that many of the administrative functions may be delegated and that in his evidence the Lord President stressed that his primary function will remain a judicial one. Nevertheless, the Committee has significant concerns about the potential administrative burden to be placed upon judicial post-holders. The Committee therefore requests that the Scottish Government provides independent quantifiable evidence about the impact such changes could have on judicial time as the Committee is concerned that the impact of the Bill’s proposals in this regard could be to detract from the judicial role.

Judicial Council for Scotland
53. In both written and oral evidence, the Lord President made reference to the establishment of the Judicial Council for Scotland “as a stepping stone” to the envisaged unification of the judiciary. It had been originally proposed to establish a statutory judges’ council to complement existing representative bodies such as the Sheriffs’ Association and the District Courts Association. After discussion, it was decided that a non-statutory body, to be known as the Judicial Council for Scotland should be set up.

54. The Council comprises the Lord President, the Lord Justice Clerk, the senior Scottish Lord of Appeal in Ordinary, two judges of the Inner House of the Court of Session, the Chairman of the Scottish Land Court, the Convener of the Sheriffs Principal, two sheriffs, a part-time sheriff, a member of the tribunal judiciary and two Justices of the Peace.

55. The purpose of the Council is to provide information and advice to the Lord President and the judiciary of Scotland on matters relevant to the administration of justice in Scotland. The Council’s objectives include preserving the independence of the judiciary, co-ordinating the view and actions of the judges to that end, providing information and to provide information and advice to the Lord President. The Committee was told that the Council is already considering certain issues, such as judicial training and welfare.

Scottish Land Court
56. Two matters arise which it would be useful to make mention of here. The first is that the Scottish Land Court is not included in “the Scottish Courts” listed in section 2(5) of the Bill for which the Lord President has responsibility. The Committee notes that the Chairman of the Scottish Land Court is a member of the Judicial Council established by the Lord President but that the Scottish Land Court itself has not been brought under the responsibility of the Lord President.

57. In his written submission to the Committee, David Houston, a full-time member of the Scottish Land Court, drew the Committee’s attention to “the substantive omission of the Scottish Land Court from the Bill as presented” saying—

“there is much to commend the opportunity being taken now to amend the Bill to include the Scottish Land Court within the definition of “Scottish Courts” in terms of subsection 2(5) of the Bill…Exclusion would appear to me to set the Land Court apart from other Scottish courts and it is not at all obvious why that should be.”³¹

58. When asked about this, the Cabinet Secretary advised “at present, the Scottish Land Court is not included in the definition, because it is not within the SCS’s domain, but there are plans to ensure that it is brought into that domain. Once that happens, logic dictates that it should be included in the definition.”³²

59. In a later letter to the Committee, the Cabinet Secretary advised—

“the responsibility for administering the Scottish Land Court will transfer in time to the SCS. When that happens, the power at section 2(5)(h) of the Bill to add courts to the definition would be used. This will form part of an overall programme of SCS change management in which the integration of the JP courts into the SCS’s management and the intended implementation of the Bill’s proposals for governance changes are earlier priorities.”³³

60. The Cabinet Secretary also explained that although the Scottish Land Court is not covered by Part 2 of the Bill, the office of the Chairman of the Scottish Land Court has the same rank and tenure as a judge of the Court of Session and has therefore been included in the definition of “judicial office holder” for the purposes of Part 2 of this Bill.

61. The Committee is still unclear as to the reasons for not including the Scottish Land Court in the Bill now. It is not an efficient use of Parliamentary time to consider this matter separately; accordingly, the Committee recommends that the Scottish Land Court now be included in the list of Scottish courts in Part 2 of the Bill.

Judicial Training
62. The second matter to mention here is that of judicial training, which up until now has been the responsibility of the Judicial Studies Committee under a judge of the Court of Session. The Bill proposes that responsibility for training should pass to the Lord President and the Committee was advised that training is being looked at by the Judicial Council.

63. The issue of judicial training has been raised previously with the Committee in the context of public petition PE997, submitted by the Scottish Sun on behalf of the Mothers for Justice campaign. This petition, amongst other things, calls for all sheriffs who deal with child custody cases to be given mandatory training.

64. When the Committee last considered this petition, it agreed to come back to the issue of mandatory training for judicial office holders as part of its consideration of this Bill. In its evidence to the Committee on the Bill’s provisions, Victim Support Scotland said “we feel strongly that the public would have more confidence in the judiciary if the Lord President made training of the judiciary mandatory”.³⁴

65. When we put this view to the Lord President, he responded—

“On the whole, my experience has been that the best way of securing due performance of the responsibilities that you have in mind is by giving appropriate encouragement to judicial office-holders to attend training…a judicial office-holder will be much better able to receive useful training if he or she has been encouraged to the view that it is a good thing for him or her to attend, rather than being marched to the appropriate place by two policemen. I am disposed to the view that it would be better to leave it to me to put in place the appropriate arrangements. If necessary those arrangements could include matters that verged on compulsion.”³⁵

66. The Committee agrees that the Lord President should have responsibility for making and maintaining arrangements for the ongoing training of judicial office holders. However the Committee agrees that confidence in the judiciary would be enhanced by making such training mandatory and so recommends.

Lord President / Lord Justice Clerk: Vacancy, Incapacity and Suspension

67. Sections 4, 5, 6, 7 and 8 make provisions for when the office of the Lord President is vacant or when either the Lord President or the Lord Justice Clerk is either incapacitated or suspended. Essentially, the functions of the Lord President will be carried out by the Lord Justice Clerk and the functions of the Lord Justice Clerk will be carried out by the Senior Inner House Judge. The Bill repeals the Senior Judiciary (Vacancies and Incapacity) Scotland Act 2006 and re-enacts it with minor modifications.

68. The Committee notes the view of the Law Society of Scotland that there should be a requirement for medical certification of ill health on the face of the Bill and that “incapacity” is too narrowly defined as it is restricted to ill health.³⁶

69. The Committee draws this to the attention of the Scottish Government and asks that the definition of “incapacity” be given further consideration.

The Judicial Appointments Board for Scotland

70. The Judicial Appointments Board for Scotland (the Board) was established administratively as a non-statutory public body in 2002 with an equal number of lay and legally qualified members. One of the lay members sits as Chair. The Board took responsibility for selecting candidates for judicial appointment away from Scottish Ministers and since then has made recommendations for appointment to the offices of judge of the Court of Session, sheriff principal, sheriff and part-time sheriff.

71. As part of the consultation Strengthening Judicial Independence in a Modern Scotland, views were sought on a range of matters concerning the Board including membership, how members should be appointed, term of office, the extent to which Ministers should be able to give guidance to the Board, the Board’s remit and whether the Board should have any role in the appointment of Scotland’s two most senior judges, the Lord President and the Lord Justice Clerk.

72. The responses received to that consultation were wide ranging and it is clear from the Committee’s evidence that there is still some concern about the composition and operation of the Board. Indeed, much of the material received by the Committee in response to its call for evidence, and a significant proportion of the oral evidence taken, concerned the provisions for judicial appointments.

Judicial Offices Within the Board’s Remit
73. Section 9 of the Bill places the Board on a statutory footing enabling it “to be seen to be independent by those who are affected by its decisions.³⁷ The functions of the Board are, essentially as before, to recommend to members of the Scottish Government individuals for appointment to judicial offices within the Board’s remit and to provide advice to members of the Scottish Government in connection with such appointments.

74. The judicial offices within the Board’s remit are listed in section 10(1) and remain broadly as before but with two additions; the office of Chairman of the Scottish Land Court and the office of temporary judge (except in any case where the individual to be appointed to the office holds or has held the office of Chairman of the Scottish Land Court, Sheriff Principal or Sheriff).

75. There is no formal role for the Board in the appointment of the Lord President and Lord Justice Clerk. Sections 18 and 19 provide that when either of those offices are vacant, the First Minister is required to establish a selection panel to make a recommendation to him about individuals suitable for appointment. The panel to recommend appointment of the Lord President is to comprise the Chair of the Board, one of the other lay members of the Board and 2 judges. The panel to recommend appointment of the Lord Justice Clerk is to comprise the Chair of the Board, one of the other lay Board members, the Lord President and a judge. This is dealt with in more detail in paragraph 148 later in this report.

76. The addition to the remit of the Board of the office of temporary judge was questioned by the Lord President who said—

“I see some legal advantage in my being able, at least at this stage, to appoint such part-time judges, rather than the Judicial Appointments Board doing so, largely because it is quite difficult to encourage people, particularly busy practitioners, to apply for the posts of part-time or temporary judges of the Court of Session…In the longer term, I would like to ensure that people who get to a certain level of their practice – say, soon after they become Queen’s Counsel – are prepared to take on board the possibility of doing part-time judicial work as part of their contribution to the community. It is a bit like what recorders do south of the border…In order to set that trend in place, I require to be able to go and tap on people’s shoulders, rather than have people filling out application forms and going through the Judicial Appointments Board.”³⁸

77. In his evidence, Sir David Edward said—

“I will mention my own case. If the law had stood as it was when I returned from Luxembourg, I could not have been appointed as a temporary judge. I would have had to apply to be a temporary judge and go through the whole assessment process, and nothing in the Bill enables the appointment of a temporary judge other than by that method. Had I been placed in that position, I am not sure that I would have wanted to go through the application and interview process...For reasons that I have never understood fully, the position of judge in the European courts does not constitute high judicial office for United Kingdom statutory purposes.”³⁹

78. More generally, Sir David Edward continued—

“I am concerned about calling such judges temporary and subjecting them to a procedure that is designed for the appointment of permanent judges…It would become difficult if the temporary judge were to apply for a permanent post. If she or he passed successfully through the scrutiny process for temporary appointment, on what ground would one refuse them a permanent appointment?”⁴⁰

79. Responding to concerns about temporary judges coming within the Board’s remit, Sir Neil MacIntosh said—

“The simple point is that an appointment made by the Judicial Appointments Board is a judicial appointment, and any move to single out one element of the judicial process for different treatment will not stand up to examination. The situation with part-time judges is exactly the same as that with part-time sheriffs, who also fall within the Board’s scope…They are not lower level positions. There is an argument to be made, therefore, in terms of public confidence and the legislation’s fundamental objectives, that part-time judicial appointments should fall within the Board’s scope.”⁴¹

80. When asked about this, the Cabinet Secretary said “If temporary judges did not fall within the proposed appointments system that would be anomalous. If the concern is about timescale, the time could be truncated – an accelerated procedure must be possible.”⁴²

81. The issue of bringing the appointment of temporary judges within the remit of the Board was raised in the 2006 consultation. It is clear that this proposal has been under consideration for some time. The draft Bill notes “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 arrangements.”⁴³

82. The Bill’s policy memorandum acknowledges that the status quo with regard to appointing temporary judges could continue, allowing appointments to be made quickly but goes on to say “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. It is also recognised that those who bring their cases before the highest courts have an expectation that there is consistency in the way judges are appointed.”⁴⁴

83. It is clear that if an applicant for the office of temporary judge is, or has been, the Chairman of the Scottish Land Court, a sheriff principal or sheriff, that applicant can be appointed as a temporary judge without being interviewed or selected by the Board.⁴⁵ There is a distinction therefore in the case of those who have previously been appointed to certain judicial offices. This distinction “offers flexibility to act swiftly when necessary, by appointing a member of the shrieval bench at short notice, and also opens up the prospect of creating a wider pool of temporary judges to be called upon to meet planned commitments.”⁴⁶ Those seeking appointment as a temporary judge who do not, or have not, held the specified judicial office will be required to go through the Board.

84. The Committee agrees that no-one seeking appointment as a temporary judge, who has been a Chairman of the Scottish Land Court, a sheriff or sheriff principal should be required to go through the Judicial Appointment Board selection procedures. However, the Committee requests that the Scottish Government consider whether someone who has served as a judge in the European Courts should be similarly exempt and investigate whether there is any way that the appointment of temporary judges can be accelerated.

How Appointments to the Board are made
85. Schedule 1 of the Bill makes further provision for the Board, setting out firstly the membership of the Board and how such members are appointed. There are three categories of Board member: judicial, legal and lay.

86. Scottish Ministers appoint the legal and lay members and these appointments will fall within the remit of the Commissioner for Public Appointments. It is for the Lord President to appoint the judicial members.

87. The Committee inquired how the appointments of the three types of members of the Board are and would be made in practice. In relation to the judicial members, the Lord President advised that he would—

“assess them from my knowledge of them as individuals…our community is sufficiently small that I know personally all the other judges of the Court of Session and I am in a position to judge who is appropriate…I would consult the Sheriffs’ Association in relation to the appointment of sheriffs to the Board. Indeed, I would probably consult more widely than that.”⁴⁷

88. In written evidence, in relation to the appointment of the legal and lay members of the Board, the Commissioner for Public Appointments stated that there are—

“several areas where the Bill does not reflect the requirements of the Code (Code of Ministerial Appointments to Public Bodies in Scotland⁴⁸), specifically in the areas of reappointment, extension to an appointment term, length of appointment term, temporary appointment and substitute appointment…the impact of this could ultimately be a report of an appointing Minister to Parliament for non-compliance with the Code.”⁴⁹

89. It was suggested by the Lord President that the legal members would be better appointed by their respective bodies.⁵⁰ An alternative suggestion was that the legal members, in particular the legal member who is an advocate practising in Scotland, should be appointed by the Lord President on the advice of the respective professional body, as it was unclear how Scottish Ministers would inform themselves of suitability for appointment.⁵¹ For this very reason, Richard Keen, QC stated “I have a real constitutional concern about a majority of members being appointed by the Scottish Ministers.⁵²

90. The Committee notes that the Commissioner brought her concerns to the attention of the Government a year ago and asks the Cabinet Secretary now to respond to them.

91. The Committee notes the various opinions on how appointments to the Board are made. The Committee did not, at this stage, form a view on whether to recommend any changes but requests that the Scottish Government consider the evidence received and report its view.

Composition of the Board
92. A number of concerns were raised about the composition of the Board. Sheriff Douglas J. Cusine, in a written submission, stated “It is not acceptable that a practising member of the legal profession should decide on the appointment of a member of the judiciary.”⁵³ This view however did not appear to be shared by other witnesses.

93. The Lord President said that representation of the judiciary on the Board was inadequate—

“the composition of the Board fails to take adequate account of the value to be gained from the involvement in the recruitment process of judicial members whose experience of the very position which is being recruited for enables them to make an effective assessment of the candidates promise in that regard. The matter is particularly acute in relation to the recruitment of judges of the Court of Session.”⁵⁴

94. The Lord President also expressed support for the addition of a further sheriff on the Board; a view shared by the Judicial Council, the Faculty of Advocates and Lord McCluskey.

95. Sheriff Dickson too, on behalf of the Sheriffs’ Association, said that the number of judicial members on the Board was inadequate—

“it would be better to follow the example that prevails in England and Wales and Ireland, where there is not necessarily a majority of judicial and legal members, but at least a larger proportion of them. We welcome the Lord President’s suggestion that another judge and another sheriff should be added to the Board.” ⁵⁵

96. The Part-Time Sheriffs’ Association put forward an argument for having a part-time sheriff on the Board—

“one sheriff principal and one sheriff sit on the Board when considering candidates for appointment as a full-time or part-time sheriff. This is a comparatively limited base from which to assess candidates in relation to the requirements of the role of full or part-time sheriff. A sheriff principal is likely to have recent experience of a number of courts within his sheriffdom but that experience will be restricted to civil appeal work. The full-time sheriff sitting on the Board will have broader experience but confined to his or her own court. On the other hand, a senior part-time sheriff would have substantial relevant and up to date experience of the Sheriff Court bench throughout Scotland.”⁵⁶

97. However the call for greater judicial representation on the Board was not supported by the Law Society of Scotland who said “The Society’s position is that the judiciary is not necessarily the touchstone of knowledge about persons who are suitable for the bench…practitioners see many more judges in action on a daily basis than judges do…we are content with the composition of the Board as it stands.”⁵⁷

98. On a more fundamental point, the Lord President advised that he was not persuaded that the requirement for equal numbers of lay on the one hand, and judicial / legal members on the other “is a manifestation of any particularly compelling principle.”⁵⁸ Again, this was a view shared by the Faculty of Advocates.

99. On the other hand, this feature of having equal numbers of lay and judicial / legal members was particularly supported by Victim Support Scotland.

100. Sir Neil MacIntosh said—

“We believe that, with five professional members and five lay members, the Board’s current composition is balanced and representative. Because there are no sides on the Board, there is no question of any particular group – or of any member in any particular group – becoming dominant.”⁵⁹

101. He went on to say—

“The point has been made that the Board differs from those in other areas of the UK. That is the case. The Board is unique, as are Scottish law and the Scottish Parliament. There is almost a Scottish context to having a balance of lay and professional members. If the Board’s composition were changed – considering that is perfectly reasonable – the dynamics of the operation would change, so it is important that that is done on the basis of reasoned and considered positions.”⁶⁰

102. The Committee notes that paragraph 3(4) of schedule 1 gives Scottish Ministers the power to modify the judicial or legal membership categories. This enables membership of the Board to be altered temporarily or permanently by either adding a new judicial office or by increasing the number of members from either of those categories. This provision is balanced by paragraph 4 which provides that the number of lay members should at all times be the same as the combined total of judicial and legal members.

103. The Cabinet Secretary was asked whether he was satisfied that the proposed composition of the Board was right and whether allowing Scottish Ministers to appoint the majority of members was consistent with the principle of judicial independence. The Committee notes that although the Cabinet Secretary responded that Scottish Ministers do not appoint the majority of Board members, this is in fact clearly stated in schedule 1 of the Bill. That aside, the Committee notes the Government’s position that—

“We have looked at situations in a variety of jurisdictions and there does not seem to be any one particular model. We were persuaded that the current Judicial Appointments Board is working well and it appears to us that there are no real difficulties…If we were to ensure a judicial or shrieval majority, the danger is that it could be perceived that we had almost a self-fulfilling ordinance…It is important that we have an overall balance. An inbuilt majority would not be in the interests of presentation…I would not expect, in dealing with an expert legal adviser or a consultant surgeon, to comment on their individual abilities as lawyer or surgeon. However lay people bring other skills to the table. That has been the case in the Judicial Appointments Board to date.”⁶¹

104. The Committee notes that the Bill provides scope for flexibility whilst maintaining the balance between lay and legal / judicial members on the Board, an approach that the Committee favours as being reasonable and practicable.

Removal of members of the Board
105. Both the Board itself and the Law Society expressed concern about the provision in schedule 1 paragraph 8(3) which allows a member to be removed upon conviction of any offence.⁶²

106. In the Law Society’s view, there is the potential for this provision to be applied in a draconian way. The Law Society suggested that it would be preferable if the reference was to any conviction which, in the view of the Scottish Ministers or the Lord President, was serious.

107. In response, the Cabinet Secretary said “removal would not be obligatory and could simply be considered, but I am happy to reflect on that…I understand that there would be flexibility to consider the issue, but we can come back to the Committee on that.”⁶³

108. The Committee requests that the Scottish Government give further consideration to the grounds for removal of members of the Board.

Operation of the Board
109. Sections 12, 13 and 14 of the Bill state that selection by the Board must be solely on merit, although merit is not defined, and that an individual can only be selected if he / she is of good character.

110. Only the legal and judicial members of the Board may assess the legal competence of applicants but it is for the Board as a whole to make a decision about appointment. Section 14 requires that “the Board must have regard to the need to encourage diversity in the range of individuals available for selection to be recommended for appointment to a judicial office.”

111. A number of witnesses expressed views, and in some cases misgivings, about these provisions. Lord McCluskey said that although he could see merit in the Government taking steps to enable more people to acquire the skills that are needed to be a judge—

“if I am going to be operated on by a brain surgeon, I want the brain surgeon to be the best one – I do not want him operating because he is black, Jewish, Catholic or whatever…Affirmative action has no place in the selection of brain surgeons or High Court judges…The Board has neither the membership nor the resources to promote the acquisition of those skills.”⁶⁴

112. In response to this particular comment, Professor Alan Paterson said—

“appointing judges is not the same as appointing brain surgeons…Although both positions involve a high degree of skill and appointment to both kinds of position has recently been reformed with a view to encouraging equal opportunities and transparency, the position of the Judiciary in a constitutional democracy is quite different from that of surgeons. The Judiciary is an arm of government as the senior judiciary in Scotland and England have accepted. This brings with it issues of institutional accountability as well as a need for an independent form of appointment which contains the necessary checks and balances required by the separation of powers.”⁶⁵

113. Sir David Edward said “the real issue is equality of opportunity generally, rather than the race, gender or other identity of the person who sits on the bench. I return to the point that what matters to the public is that the person is good at administering justice.”⁶⁶

114. When asked whether there was any need for the diversity provision in the Bill, Sir David responded—

“my answer is the answer that was given to me when I discussed the issue recently with a professor down south. She said these kinds of provisions condition the way people behave and are therefore useful, as long as they are not carried too far.”⁶⁷

115. The Lord President acknowledged the need for diversity among those who hold important public positions but said “one has to bear in mind the fact that one is appointing people to judicial positions from a pool of those who are experienced in particular fields of legal activity.”⁶⁸

116. George Way of the Law Society said “recruitment will not, in itself, and can never, deal wholly with diversity when the post of judge or sheriff is fairly rigid in how it operates…we need to address the end use of sheriffs, not just the recruitment process.”⁶⁹

117. In his written evidence on the issue of seeking diversity in the pool of candidates for selection for judicial posts, Professor Alan Paterson said—

“This is now a commonly held concern in relation to all public appointments. Appointment on merit is unchallenged, but there is less agreement on the meaning of “merit” amongst commentators than is sometimes recognised. There were lengthy debates in the House of Lords Committee on the Constitution about the relationship between merit and diversity prior to the passing of the Constitutional Reform Act 2005. This Bill contains similar provisions on diversity and certainly the reasons for encouraging diversity in the judiciary and the pool of candidates for judicial selection have been widely canvassed in the literature.”

118. Sir Neil MacIntosh told the Committee that the board has set up a Diversity Working Group with a remit “to assist the Judicial Appointments Board for Scotland in considering ways of recruiting a judiciary which is as representative as possible of the communities they serve.” In his oral evidence, he said—

“it will be important to engage in discussions with all the other agencies involved to examine not only how we advertise and recruit but the nature of the jobs and how they can facilitate diversity.”⁷⁰

119. The Cabinet Secretary agreed, saying “It is inappropriate for us to give direction, but we can give guidance on a variety of matters that might be the subject of legislation in due course, for example to do with employment.”⁷¹

120. It is clear that consideration of issues around diversity should not and could not be a matter for the Board alone. The Board is only able to appoint from the available qualified pool and then only from those who make application. The Committee welcomes the establishment of the Board’s Diversity Working Group but calls on the Scottish Government to ensure that a holistic approach is taken to consideration of issues of diversity in relation to judicial appointments. Such a holistic approach would include consideration of access to education and training, working patterns and other employment issues.

121. Lord Osborne advised that there are concerns among members of the judiciary relating to the manner in which the Board informs itself about candidates and that “the Board is blinkered to sources of information that one would have thought were highly valuable.”⁷² He continued, another concern is about the length of time that judicial appointments take to be made, “by way of example, a judge of the Court of Session is now expected to give nine months’ notice of retirement. That strikes many of us as rather extraordinary.”⁷³

122. On the issue of gathering information on candidates, Richard Keen QC said—

“the Board should consider consulting a little more widely than it does. I find it a little odd that I am regularly asked, in my capacity as Dean of Faculty, to complete reports to the Judicial Appointments Commission in England and Wales when members of faculty have applied for judicial appointments in England and Wales, but that I am not asked to do that when they have applied for an appointment in Scotland.”⁷⁴

123. Sheriff Fletcher made the same observation “It seems strange to me that the current Board would not be prepared to, or would not feel able to consult the Law Society of Scotland or the Faculty of Advocates about candidates, for example.”⁷⁵

124. On these points, Sir Neil MacIntosh observed—

“In its report to the Parliament three years ago, the Board made it clear that we believed that a substantial gap existed in the knowledge base about those who are in service, because we have no information about how people conduct themselves in part-time shrieval or floating sheriff appointments. We have advocated the fundamental argument that there should be a robust, objective and fair process in the interests of all concerned.”⁷⁶

125. Michael Scanlan, a member of the Board, continued—

“It might be simple enough for the Dean of Faculty – with a very small faculty – to say positive things about Mr X or Ms Y. However, when I was president of the Law Society of Scotland, we had 11,000 members. It would have been wholly improper for me to have given an opinion on the suitability of one person, simply because I knew them, when there were another 10,999 out there whom I did not know.”⁷⁷

126. The Committee noted the comments of Lord Reed who stated “I hope that if we have clearer and more formalised arrangements for the discipline and management of sheriffs and, indeed, all judicial office holders, that will make it easier for the appointments board to make sensible checks with those who have management responsibilities for candidates.”⁷⁸

127. The Committee is of the view that the Board must have as objective and thorough an assessment system as possible. Such a system should be robust, relevant and verifiable and in particular should allow references to be taken up.

Recommendations of the Board
128. Once the Board has made its recommendation and it has been accepted, it is for the Scottish Ministers then to make the appointment or to nominate or recommend an individual for appointment as appropriate.

129. In its written submission, the Law Society of Scotland expressed concern about the appointment process, saying “there appears to be no provision for a fair implementation of the Board’s decision.”

130. The Law Society’s submission explained that since 2004 there have only been three occasions on which the interviews have been for designated posts, all other posts have been advertised on the basis that successful applicants are placed on a waiting list. The Law Society said that the waiting list is time limited, to effectively 18 months. Although candidates are ranked by the Board they are not informed of their ranking when the matter passes to Scottish Ministers. If a candidate on the waiting list is not appointed during the lifetime of that waiting list, the candidate must re-apply in the same way as a rejected candidate under section 11(3) (where Scottish Ministers have decided not to accept a Board’s recommendation).

131. In the view of the Law Society—

“There is, therefore, a theoretical risk that a candidate ranked highly by the Board could be placed, unknown to them, by Ministers in a lesser rank and simply could not be appointed within the currency of that list, as there were insufficient vacancies. The lack of oversight could lead to a suspicion (no matter how unfounded) that “re-ranking” could happen (for which no reason would need to be given as opposed to section 11(3) rejection) as a form of political intervention.”⁷⁹

132. This issue was also raised by the Part-Time Sheriffs’ Association, who said—

“The Association is aware of concerns from a number of sources that certain candidates may not have been appointed according to the order on which they appear on the slate. Put shortly, the complaint is that candidates are chosen from the slate for reasons which the Board may not be aware of rather than in the order ranked.”⁸⁰

133. The Association suggested that in general the highest ranked recommended individual should be offered the next available vacancy.

134. In response to these points, the Cabinet Secretary advised that to some extent, such matters were best dealt with by the Board but that—

“Situations arise in which there are insufficient vacancies. It is not a matter having people on a waiting list for ever and ever. Besides that, people’s circumstances can change. New people can arrive on the scene who are better qualified – it should not simply be Buggin’s turn…If the Board was persuaded that advising a candidate whether they were number 7 or number 2, for example, had merit, I would be happy to accept that.”⁸¹

135. The Committee concludes that other than in exceptional circumstances, there should be a pool of people, open to all who are suitably qualified and who have been assessed as suitable for judicial appointment and that merit should be the overriding criterion for inclusion in the pool.

When Ministers Decide not to Accept a Recommendation of the Board
136. Section 11 provides that where a Minister does not accept a recommendation of the Board, the Minister must explain the decision in a notice to the Board and the Board must reconsider the matter and make a further recommendation.

137. In his evidence to the Committee, Michael Scanlan said—

“I see the opportunity for a stand-off developing, if a matter comes back to the Board and the Board disagrees with the disagreement of the minister and recommends the initial person again. I wonder how long the process could go on for. I would have thought that a mechanism could be introduced to resolve the situation if the Board were not of a mind to change its earlier recommendation.”⁸²

138. Sir Neil McIntosh added—

“I understand that south of the border, if a recommendation is referred back to the Judicial Appointments Commission, which then repeats its recommendation after having considered the matter, the recommendation must be accepted. The situation is different here, where there is a blank in that respect.”⁸³

139. In his response the Cabinet Secretary said “It is hard to think of such circumstances…There would have to be some discussion about what had brought about the impasse…This is one of junctures at which we would have to sit down and work it out. Seeking to legislate for such matters could make the situation worse.”⁸⁴

140. The Committee agrees that there is no need for legislative provision in this regard and that in the event of disagreement, common sense should prevail.

Guidance to the Board
141. Section 15 provides that both the Scottish Ministers and the Lord President “may issue guidance to the Board as to the procedures to be followed by it in carrying out its functions” to which the Board “must have regard”. Before issuing guidance the Scottish Ministers must consult the Lord President and the Board and before the Lord President issues guidance he must consult the Board and obtain the agreement of the Scottish Ministers.

142. Sir Neil MacIntosh said “obviously it is not comfortable to have guidance potentially coming from two sources”⁸⁵ and suggested that before guidance is issued it should be scrutinised / endorsed by the Justice Committee.

143. The Committee welcomes the suggestion that any proposed guidance from either the Scottish Ministers or the Lord President should be scrutinised by the Justice Committee, and so recommends.

Confidentiality of Information
144. Section 16 of the Bill sets out restrictions on the disclosure of information by anyone in connection with the Board’s functions. Although the Freedom of Information (Scotland) Act 2002 applies to the Board (paragraph 21 of schedule 1 of the Bill), to the extent that information is prohibited from disclosure by this section of the Bill it is exempt under a freedom of information request. Section16(6) provides that any disclosure of information in contravention of this section that causes loss or damage to the individual to whom the information relates is actionable at the instance of the individual.

145. The Law Society of Scotland suggested “rather than rely on the individual to bring a private action with the potential for further embarrassment, it may be more appropriate to include a section in the Bill providing state protection for the individual concerned. It should be made a statutory offence to breach confidentiality in such cases.”⁸⁶

146. Making the Board subject to the Freedom of Information (Scotland) Act 2002 was a concern for the Board. In his evidence, Sir Neil MacIntosh said that the implications “will be difficult to establish until such time as we are able to engage with FOI in practical terms…Given that an entirely open process would severely hamper our ability to operate, we would seek the proper and practical applications of the regulations.”⁸⁷

147. At this stage, the Committee is not persuaded that making the Board entirely subject to the Freedom of Information (Scotland) Act 2002 will provide clear benefits. The Committee therefore asks the Scottish Government to consider this matter further and report its views.

Lord President and Lord Justice Clerk – Appointment
148. Sections 18 and 19 make provision for appointing the Lord President and the Lord Justice Clerk and it is for the First Minister to establish a panel in accordance with schedule 2. The panel will comprise two lay members and two judges. A number of witnesses were asked their views on the role of the First Minister in relation to the appointment of Court of Session judges – and in particular the Lord President and the Lord Justice Clerk – and whether that role was compatible with judicial independence, no concerns were expressed.

149. In his evidence, the Lord President said—

“I am content with the arrangements for the body charged with making recommendations for nominees for the posts of Lord President and Lord Justice Clerk. There is a qualification to that. At one stage, I expressed the view, to which I still adhere, that there could be an advantage in having either a judicial majority or a provision whereby if the Board was split evenly the senior judicial members would have a casting vote.”⁸⁸

150. The Cabinet Secretary said “The Lord President and the Lord Justice Clerk are two major offices of state, so it would be absurd for the First Minister not to have some involvement in their appointments. However, we must ensure that the appointments are not political. The proposed methods strike the appropriate balance.”⁸⁹

Judicial Appointments – some comparisons
151. In his evidence to us, Sir David Edward referred the Committee to a research paper Judicial Appointments: Some European Experiences.⁹⁰The Committee noted that in some countries judges are appointed or co-opted by other judges, but in other countries the appointment of judges is entirely within the discretion of the Executive and that the method of appointments seems to depend on the nature of the judiciary.

152. Sir David Edward said, “It seems to me to be perfectly legitimate in a democratic society that the appointment of judges should be made by people who are democratically accountable. I see nothing inherently wrong with the involvement of ministers in the Executive, which is responsible to the Parliament, in the appointment of judges.”⁹¹

153. He added that he was content that the Board was sufficiently independent of Government saying “As Sandra Day O’Connor said, it is about people, not rules or institutions. If the people behave independently, that is a sufficient guarantee.”⁹²

154. The Committee was persuaded by Sir David Edward’s evidence and agrees that the behaviour of those mandated with making judicial appointments is what matters.

Footnotes: