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Crying freedom

1 October 01

Argument that behind the fine rhetoric, Scotland’s judicial appointments process remains shrouded in secrecy

by Alistair Bonnington

Crying Freedom, it would appear, is very much the watchword of the day with the Scottish Executive.  

At the end of last month the Justice Minister, Jim Wallace, announced the introduction of a Bill to allow Scots access to material held by public authorities under a Freedom of Information statute.  Scotland is getting its own legislation because in the Executive’s view politicians south of the border are not being sufficiently “open and transparent” with their citizens.

That phrase - “openness and transparency” is one which is seldom far from the lips of members of the Scottish Ministers.  They tell us they are determined to create a more open Scottish society in which we the citizens know what is done by public officials at our expense and in our name.

This same mantra was trotted out by Jim Wallace when announcing the creation of the Scottish Judicial Appointments Board at a speech in Glasgow in March of this year.  He said that the present secretive selection system was wrong.  The process should not be detached from public scrutiny - it should be “opened up”.

The Minister said that in due course there would be legislation to set up the Judicial Appointments Board.  But in the meantime there would be an ad hoc board for the purpose of appointing Sheriffs and judges. 

This would take the appointment process out of the political sphere, something that has been regarded by most thinking Scots as a real problem since under the devolution scheme the Lord Advocate becomes a party politician with a seat in the Scottish Cabinet.  The appointment of sheriffs and judges by such a party politician could, in fact, in perception or even both be a corrupt process.  Rightly or wrongly the appointments to the shrieval bench made by the first post-devolution Lord Advocate, Lord Hardie, were questioned by many of the legal profession because they seemed to involve a remarkable number of lawyers who had been associated with one particular law firm which has strong trade union and Labour Party connections.  Even if that criticism was unfounded in fact, the unfortunate perception of political bias was fuelled by the flawed appointment procedure in force at that time.

So where are we now?  Sadly, the Justice Minister’s fine words have been no more than words. Lawyers may know but the public certainly don’t, that ad hoc boards have dealt with recent appointments of part-time sheriffs, sheriffs and judges of the Supreme Courts.  Again, lawyers know that there is lay representation on these boards. In this small profession news travels fast.  Intelligence is that the lay input has been of questionable quality.  That is no reflection on the quality of the lay individuals.  They are no doubt excellent in their own right at their chosen careers.  But, if the rumours of their performances are true, it shows that they are completely unequipped to select judges.

No-one is suggesting that this selection process itself should be public.  The unedifying spectacle of the American Senate Confirmation hearings involving nominees to the Supreme Court Bench are a salutary lesson that public hearings simply do not work for judicial appointments.  But acceptance of the need for respect for the confidentiality of the deliberations and selection process is quite a different matter from making public (a) who it is who forms the present Appointments Board; and (b) what criteria they apply in the selection process.  If that bare minimum of information is not made public, then what on earth do Mr Wallace’s words “openness and transparency” mean?

But there is another twist to this tale.  Last month, the process for the first appointment to the Lord President’s Chair since devolution was begun under Section 95 of the Scotland Act.  That provision requires that the post of the Lord President is made by the Prime Minister.  The Prime Minister takes advice from the First Minister, who has to take advice from the present Lord President and Lord Justice Clerk.  So there is absolutely no question here of the appointment of the two most senior judges in Scotland being removed from the political sphere.  They remain firmly in the hands of party politicians.  It does seem odd that the political involvement which was found to be so unacceptable in the case of appointment of ordinary Court of Session judges and sheriffs is found to be quite acceptable in relation to the Lord President and the Lord Justice-Clerk.

It would be very surprising if most Scottish Nationalists, for example, did not object to the appointments of the Lord President and that of the Lord Justice Clerk still being matters for London rather than Edinburgh.  But, as far as openness is concerned, a reading of Section 95 of the Scotland Act explains to the public what happens.  We cannot say the same of the appointment of part-time sheriffs, sheriffs and Lords Ordinary to the Court of Session Bench.  That goes on behind closed doors in interviews involving unknown people.  Who are these folk who decide who will sit in judgment of their fellow men and women?  For all we know, they may be well-known eccentrics or even quite mad.  We have no idea what criteria they apply.  They could be sexist, racist, use quite improper political considerations or indeed utterly corrupt.  We don’t have a clue.

If this is Mr Wallace’s idea of “openness and transparency”, the legal profession may choose to question his judgment.  They might also question how committed he is to his keynote policy of Freedom of Information.  Fine words are all very well.  We lawyers look to what happens in practice.  What we see in judicial appointments is not at all impressive.

It would appear that our Justice Minister wishes for transparency in the same way as St Augustine wishes for chastity - “not yet”.