FRANCO-BRITISH-IRISH JUDICIAL COMMITTEE BELFAST CONFERENCE JUDICIAL APPOINTMENTS BOARD IN SCOTLAND

Transcription

1 FRANCO-BRITISH-IRISH JUDICIAL COMMITTEE BELFAST CONFERENCE JUDICIAL APPOINTMENTS BOARD IN SCOTLAND The Judicial Appointments Board in Scotland was set up in 2002 by the Scottish Executive. At that time the Executive issued general guidance to the Board, but specifically left it to the members to develop their own practice and procedure. It has always been the Executive s position that they wish to put the Board on a statutory footing, but that for various reasons has not happened. There is currently being prepared a bill which has among its purposes the statutory establishment of the Board, but what shape it will be in after the elections in May of this year is anybody s guess. However, the manner in which the Board was constituted in the first place by the Executive immediately placed the Board at a disadvantage in the crucial area of being accepted by the legal profession. There was little or no consultation with the profession before the Board was in principle established. So far as can be discovered, what happened was that the head of the Justice Department in the Scottish Executive informed the Lord President of the Court of the Session of the day over dinner that he intended to set up a Judicial Appointments Board, and the Lord President simply indicated to the civil servant in question that he should do so. Beyond that, the Lord President s private office, the Senators of the College of Justice, the Faculty of Advocates, the Sheriffs Association, and the Law Society, so far as I can discover, were not in any way asked for their views on how the Board was to be set up, or how it would work. The result was that the Board was set up exactly as the Executive wished. There were to be, and are, five lay members and five legal members. The chair is a

2 2 lay person, and he, or another lay member, chairs all the sub-committees. The legal members are a senior judge appointed by the Lord President, a Sheriff Principal selected by themselves from among their ranks, and a Sheriff appointed by the Sheriff s Association. There is also to be a representative of the Faculty of Advocates and a Member of the Law Society. What that means in practical terms is that within the United Kingdom, the Judicial Appointments Board in Scotland is unique in that the judicial members are significantly outweighed by the lay members. Before the Board began its work therefore, the legal profession had two major pills to swallow about the constitution of the Board; it had not been asked for their views on how the Board should be set up and how it should work, on any view an act of political unwisdom and that from the outset the judicial representation on the Board, unlike what happens in most other jurisdictions, is in a distinct and permanent minority compared to the lay membership. The lay membership of the Board was open to public appointment. Members of the public were invited to apply following advertisement. In fact several prominent figures were informally approached and asked to put their names forward. In the event the process produced some lay members of the highest calibre. In particular, it must be said, the chairman of the JSB from the start demonstrated the highest standards of public service and brought to his difficult task enormous energy and careful thinking. The exercise of setting up such an organisation from scratch the Scottish Executive loudly trumpet the Board as the pioneer in the United Kingdom was considerable. The institution of practices and procedures, and of implementing them in practice, was a difficult challenge and the chairman deserves the highest praise for the way in which he discharged his responsibilities.

3 3 Within its own terms of reference, the Board can in some respects justifiably claim that it has achieved what it set out to do, in providing an independent system of appointment. However, even before consideration is given to how these procedures in practice can be objectively considered, and are in fact considered by the profession, the limitations of time available for the Board s work, together with the handicaps of lack of consultation and the weighting of the Board s membership in favour of lay representation, provide, in the opinion of many, significant obstacles to efficiency, effectiveness and acceptance. Nonetheless, the Board has now appointed about one third of all of Scotland s serving judges at all levels. The procedure adopted by the Board is simple and is applied uniformly to every level of appointment. In other words, the same process is used whether the position to be filled is that of a Senator, Sheriff Principal or a Sheriff, whether full- or part-time. Following advertisement for the positions to be filled, applicants are invited to fill in a form which is framed against a number of specific provided competencies. They are invited to describe his or her experience, and the talents which are considered to justify appointment. They are also asked to make a personal statement. They have to provide the names of three referees, who will provide written references. The applications are then sifted by the whole committee and a view is collectively formed as to who does and who does not merit interview. References are then taken up in respect of those who have passed the sift and interviews arranged. Interviews are not carried out by the whole Board but by a group of six in the case of principal appointments and those which are only concerned with a small number of appointments; in the case of larger numbers of appointments (such as in the case of part-time Sheriffs) groups of four Board members constitute the interview panel. This involves a considerable amount of work; at the end of last year sixty interviews had to

4 4 be carried out for the posts of part-time Sheriffs. When different groups of interviewers are employed over a range of candidates, strenuous efforts are made by the chairman to secure uniformity of assessment so far as possible, principally by having as many common members of the groups as possible, and by the chairman discussing the interviews with those others who chair groups when he is not present. The various candidates are assessed on their performance at interview against the background of their references and personal experience and statements, and the selection markings or slate is then produced by the whole Board with candidate categories of highly recommendable, recommendable, not on this occasion or not at all. The recommendations are then submitted to the First Minister who makes the appointments. The chairman and others conduct feedback debriefings for unsuccessful candidates should they wish it. That there are improvements that could be made in our present system is without doubt. However, in the first place it has to be compared with what it replaced. The previous system lay entirely within the gift of the Lord Advocate, Scotland s principal law officer, who was responsible for the twin functions of advising the government of the day on Scottish legal matters and being in charge of what was then an independent prosecution system. The Lord Advocate often consulted widely before making appointments but was really able to consider only those whom he knew from his personal and professional experience, or who were recommended to him from sources which he could trust. As a result large numbers of suitable candidates were in normal course simply not considered because they were outwith what was often in effect a closed circle of the Lord Advocate s friends of acquaintances. The present system is therefore significantly fairer in that anyone can apply, there is an equal competition, and there can be no question of personal

5 5 favouritism in the appointments. However, the fact that the system is the same for everyone does not necessarily mean that it cannot be significantly improved. There have been, almost from the start, a number of running criticisms against the Board s procedures. For a variety of reasons, it is, I believe, important that the Board accepts that, to a greater or lesser degree, there is substance in some of these criticisms, and attempts to address them. One of the most frequently expressed complaints is concerned with the well-publicised guiding principle adopted by the Board at the outset, and maintained vigorously since, that it will not under any circumstances entertain soundings about candidates, by which is meant opinions offered about the suitability of an applicant based on the personal knowledge of individual Board members. That individual members of the Board will not provide personal views on applicants, I can understand; the law is a hotbed of gossip and unsettled old scores. Nonetheless it can be extremely difficult to read in an application form, time and time again, statements by applicants to the effect that immediately on qualifying he or she acquired a busy and high quality practice and equally immediately secured a high reputation for integrity and competence among his or her fellow practitioners, when personal knowledge indicates that this is simply not so. In extreme cases, there is the opportunity to take particular knowledge of a problem concerning a particular applicant to the chairman, who will decide what to do with that information. But is it increasingly difficult to defend a policy which demands that the only outside source of information available to the Board on any candidate comes from the three referees selected by the candidates themselves. Occasionally the references reveal all, or some of the truth; sometimes if you look hard enough you will find something which reveals something of significance. But normally the referees too often leave one

6 6 feeling at a loss to explain why such exemplary and talented persons should bother with such a sordid and menial job as judging. However, it should be acknowledged that there has been a measure of improvement over the last few years over the quality of some of the references. The difficulty of course lies in finding a fair and universally applicable system of objective evaluation. The Dean of the Faculty of Advocates might give clear and unambiguous references to most advocates who apply for positions based on personal knowledge and experience. There is, however, no comparable figure for solicitoradvocates, nor is there a readily identifiable individual who could perform objective reference for a solicitor. Sheriff Principals might have a view on some sheriffs, but I can certainly think of no such person who could give an appropriate view on an academic or civil service candidate. The Board is currently wrestling with the problem of more objective and satisfactory evaluation of applicants, but is currently nowhere near a solution. A further criticism and concern about our procedure is that a great deal depends on the interview. Someone who interviews badly, or who has a bad day, will not be selected. Procurator Fiscals have a tradition of interview within their service which can put them at a significant advantage over applicants from other disciplines. Somehow it has taken over a year for the Executive to arrange for interview training for the Board. Another area of criticism lies in the guidance given by the Executive to the Board at the outset, and repeated since. The Board is charged with the responsibility of selecting the best person for the job in every situation. At the same time, however, the Board is specifically enjoined to reflect so far as is possible the diversity of Scottish society in appointments made. The Executive s concern in this respect appears to centre principally on gender and race, although apparently not on

7 7 class or any other consideration. How is this problem to be solved? The Board in practice has adopted two working principles. The first is that should there be two candidates of exactly equal merit, then the choice of which is to be appointed will be guided by the need to reflect the diversity of Scottish society. In other words, if there are two candidates, one male and one female, and there is currently a preponderance of males on the Bench, the Board, in that circumstance, will be expected to appoint the female. This has simply, in my experience, never happened, nor is likely to. The second principle involves the consideration of what are called transferable skills. The Board is prepared to examine sympathetically applications from candidates with relatively little direct experience of court work, if they can demonstrate that they have other legal skills which would suggest that they could perform judicial duties to an acceptable level. The most fruitful source of recruitment, in this area has proved to be from the ranks of family law practitioners, who can demonstrate that they have developed a successful business, are skilled mediators, and have considerable expertise in family law, conveyancing, housing and benefits law, and so on. Such practitioners, as it happens, are almost invariably female, and my own view is that a number of the better shrieval appointments the Board has made have come from this source. However, the criticism that the Board has appointed persons with inappropriate experience and qualifications remains, and is difficult to rebut effectively. There are other areas of criticism, for the examination of which time is not available. Some of these criticisms are motivated by a desire for improvement of the system, some perhaps by personal disappointment. I believe that the appointments made by the Board have usually been of the best candidates available; that the appointment system is emphatically not the main reason why some potential

8 8 candidates do not apply for appointment, but that in a number of areas the Board could, and must, improve its procedures. But there is one major difficulty which stands directly in the path of improvement, and of any better acceptance of the Board s activities by the legal profession. At the time of writing, several Board members are set to resign. The Chair will retire next year. Despite regular requests over the last few months that a proper selection committee, perhaps similar to that in England, should be set up to provide new Board members, nothing has been done. In the last few days the head of the Justice Department in the Scottish Executive has made it clear that he wishes to control that process and chair any such selection committee. The Board s current opposition to this approach, with one or two exceptions, is, I am happy to say, one of implacable opposition. I hope to report more fully on this topic at the Colloque.