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Judicial appointments system still opaque

1 March 02

Criticism of attempts to make judicial appointments system more open, and argument for establishment of Judicial Appointments Board

by Gilmour, Jamie

Edinburgh lawyer, Jamie Gilmour, former Secretary of the Temporary Sheriffs Association, criticises attempts by the Scottish Executive Justice Department to make the judicial appointments system open and transparent and calls on the Justice Minister, Jim Wallace QC, to introduce legislation to establish a Judicial Appointments Board.

Following the demise of the temporary sheriff at the end of 1999, 20 new permanent sheriffs were appointed to cope with immediate court business. These sheriffs were appointed on the recommendation of the Lord Advocate, Lord Hardie QC, after due advertisement. When the Bail, Judicial Appointments etc. (Scotland) Act came into force in the autumn of 2000, the Scottish Ministers had power to appoint a maximum of 60 part-time sheriffs on five-year  renewable commissions. The Lord Advocate, Colin Boyd QC, recommended 31 individuals for appointment after due public advertisement. The Lord Advocate reportedly recommended those he knew and the list included one retired civil servant and four retired sheriffs, one of whom had retired on health grounds. The remainder were either advocates or solicitors. All, however, had some previous shrieval experience. Any unsuccessful applicants for the part-time shrieval posts were advised in writing by the Scottish Executive Justice Department that “we will advertise the next round of appointments as soon as we have instructions to do so”.

In late spring of 2000 the Scottish Executive Justice Department under the slogan ‘Making it work together’ published a comprehensive consultation paper ‘Judicial Appointments – An Inclusive Approach’. In the foreword to the consultation paper, Jim Wallace, in inviting views on the procedures to be adopted for future judicial appointments, stated: “I hope that this consultation paper will generate a wide and constructive debate which will enable us to move forward to establish a firm foundation for an open and accessible system for judicial appointments which can be readily understood and so can more readily command the support of the legal profession and the public at large”.

It is not known which bodies or individuals responded to the consultation paper and what views were expressed on the topic of judicial appointments since the Scottish Executive has failed either to publish a document detailing the views of those who took the trouble to respond or even provide some form of summary of the responses. If there was any ‘wide and constructive debate’ on the procedures to be adopted for judicial appointments it took place within the offices of the Justice Minister and his internal advisers. Such an attitude almost derides those who took the time and trouble to structure and submit detailed responses to the consultation paper. Readers should know that at least the Council of the Temporary Sheriffs Association and the special committee set up by the Faculty of Advocates did spend a considerable amount of time, thought and effort in structuring replies. Unfortunately the public at large and members of the Scottish Parliament in particular do not know the details of any of the responses.

Instead, the Minister for Justice in March 2001, in an announcement made in answer to a planted question in the Scottish Parliament, stated that the Scottish Executive intended to establish a Judicial Appointments Board. The written answer went as follows “The Board will be chaired by a senior non-legal figure, and will have other lay members, who will be appointed following Nolan public appointment procedures. It will also contain representatives of the judiciary and legal professions, so that lay and legal members will be equally balanced. The Board will be set up on an administrative basis, but when parliamentary time allows it will be put on a firm statutory footing. Its role will be to advise the First Minister on names of new appointees to the office of Judge of the Court of Session, Sheriff Principal and Sheriff (both permanent and part-time Sheriffs).  It will determine its own procedures, but will be subject to guidance from Scottish Ministers. All appointments will be advertised and appointments will be made solely on merit. The Board’s procedures will include a requirement that the legally qualified members are satisfied as to the legal capacity of those recommended. The Board will make its recommendations to the First Minister, who will consult the Lord President of the Court of Session (as he is obliged to do by the Scotland Act 1998). The First Minister will expect to accept the advice of the Board unless there is good reason to the contrary. The Lord Advocate will no longer routinely advise on appointments, but will advise the First Minister in any case of uncertainty about the Board’s recommendations”.

The next step was public advertisement in October 2001 by the Scottish Executive seeking to appoint a Chair (sic) and up to four lay members for a Judicial Appointments Board to recommend individuals to the First Minister for appointment as High Court Judges or Sheriffs. The Scottish Executive subsequently advertised for five legally qualified candidates for the Board. In line with the answer to the parliamentary question the Chairman, who will be responsible for setting up the Board, establishing its procedures and overseeing its operation, will not be a member of the judiciary, a practising advocate or a solicitor. As far as the lay members are concerned the only guidance as to the sort of person likely to be appointed by the Scottish Executive to serve on the Judicial Appointments Board might be gleaned from perusal of an application form. It would appear that the Scottish Executive is looking for enthusiastic people with knowledge of public life and recruitment experience, in particular a knowledge of equal opportunities. Understanding of the legal system appears to come last in the list of criteria. Applicants require to indicate whether they have been nominated and by what body. Does this mean that the Board will be invaded by minority associations and pressure groups? Will there be civil servants on the Board? Will the First Minister and the Justice Minister select the selectors to select the lay members? What will be the size of the Board? Will there be sub-boards to deal, for example, with the appointment of Sheriffs? Will the Scottish Ministers or the Lord Advocate have power to usurp the authority of the Board and recommend some other individual for appointment? Will the Board mount periodical recruitment exercises and keep a “slate” of candidates suitable for appointment to a particular post for a given period? Will vacancies be routinely advertised?  We do not know the answer to any of these questions. Sadly it is all rather opaque.

But the Scottish Executive has already engaged in two trial runs, setting up in 2001 ad hoc judicial appointments boards to select a number of Sheriffs and High Court Judges. From what is known about their operation it does not augur well for the new Judicial Appointments Board about to come on stream. In January 2001 the Scottish Executive Justice Department advertised for the appointment of seven new resident Sheriffs for specified posts. It was decided by the Justice Minister to establish a Selection Board to conduct a sift of the applications and draw up a shortlist of candidates for interview before the Board made recommendations for appointment. The membership of the Board selected by the Justice Minister was Sheriff Principal Nicholson of Lothian and Borders (Chairman), Sheriff Principal Bowen of Glasgow and Strathkelvin, Mrs Barbara Duffner, Head of Personnel, Royal Mail, and Mr Jim Gallagher, Head of the Scottish Executive Justice Department. Apparently over 120 applications were received by the closing date. Following the sift the Board determined to interview approximately 25 candidates for the seven new resident posts. Accordingly some 100 applications were rejected by the Selection Board in circumstances where only the legally qualified members of the Board would have any knowledge whatsoever of any of the candidates. It would appear that the Board did not even take up references before indulging in the sift. The outcome was more of a cull than a sift. None of the rejected applicants was advised of the reason for rejection. At the end of the selection process none of the seven advertised posts went to any of the candidates interviewed by the Selection Board. The seven appointments went to existing permanent Sheriffs who were either resident Sheriffs seeking a transfer or floating Sheriffs seeking a resident post. None of the permanent Sheriffs was interviewed but no doubt must have offered the Selection Board some written reason or reasons to secure a resident position. Nine of the candidates interviewed secured other new permanent appointments following the posting of floating Sheriffs to new resident posts and the transfer of resident Sheriffs to other posts. It is not within public knowledge whether those nominated by the Board for appointment were in fact those selected for appointment by the Justice Minister in order of nomination.

Interviews carried out by such a Selection Board are obviously confidential but as sure as night follows day it is inevitable that information leaks out about the conduct of the interviews. There is no doubt that any lay member will be chosen because of a particular expertise in his or her own field but one has to seriously question the benefit of lay input when it is known that candidates have been asked for a view on the legalisation of cannabis. To ask such a question illustrates a misunderstanding of the role of the Sheriff or Judge who is clearly in place to interpret and administer the law.

The Selection Board established to nominate seven new resident sheriffs apparently had a further previously undisclosed remit for candidates were asked whether they were interested in an appointment as a part-time sheriff if they were unsuccessful in securing a permanent full-time appointment. The Justice Department was obviously concerned about running low on the number of part-time sheriffs. Indeed 4 of the original 31 were subsequently appointed to full-time positions. As a consequence of the enquiry 7 new part-time Sheriffs were appointed as a result of a quest for seven specified resident sheriffs. These appointments, however, were not made public. It may just be that out there in the legal profession there are advocates and solicitors who might have been interested, for professional reasons, in a part-time position. If so, they would be disappointed. So much for the intimation that the next round of appointments would be advertised.

Also in 2001 the Scottish Executive Justice Department set up a Selection Board for the purpose of appointing three new High Court Judges. This followed a public advertisement in March 2001 for those wishing to express an interest. The members of the Board selected by the Justice Minister were Lord Sutherland and Lord Coulsfield, both High Court Judges,  Mrs Christine Davies, formerly Chairman of the Scottish Legal Aid Board and the aforementioned Mr Jim Gallagher.

The Selection Board, selected the candidates for interview but not all candidates were interviewed in the presence of all the Board members. Mr Gallagher withdrew from interviewing one candidate for appointment in view of what could be described as a ‘relationship’, a fact that must have been known to him prior to the conduct of any of the interviews. The civil servant should have disqualified himself from membership of the selection panel at the outset. The result was gross unfairness to one of the candidates. One does not need to do much lateral thinking to appreciate the impact on the interviews if Mrs Davies required to absent herself from one of them. Perhaps Mr Gallagher did not regard the situation as significant since he is in two camps not only being a member of the panel nominating individuals for appointment but also being the civil servant advising Ministers on selection. The situation was aggravated since Mr Gallagher was advised in advance that it was inappropriate for him as a senior civil servant of the Scottish Executive to be a member of the Selection Board. It is again not within public knowledge whether those nominated for selection by the panel were in fact those selected for appointment by the Justice Minister in order of nomination.

More recently resident Sheriffs at Kirkcaldy and Kilmarnock retired. Unlike the past, these vacancies were not publicly advertised. Instead the vacancies were filled by two permanent floating Sheriffs. Their places in turn were taken by two part-time Sheriffs, both of whom had not been on the original list of 31 but became part-time sheriffs following the interviews carried out by the Selection Board for the original seven resident posts. We must assume that these Sheriffs were on the ‘substitutes bench’ for future appointments following the Selection Board’s interviews.

Since the Lord Advocate lost his prerogative of choice in judicial appointments and the introduction of ad hoc Selection Boards, the track record of the Justice Department cannot be construed as being good. Permanent shrieval posts have been filled without public advertisement. Part-time Sheriffs have been appointed on the back of advertisement and interviews for permanent appointments despite intimation that part-time appointments would be advertised. Individuals have been appointed to the shrieval and High Court benches without public intimation that they have been appointed in order of Selection Board nomination. A senior civil servant has been sitting on the Selection Boards and also advising Ministers on appointments. A candidate for the very important position of High Court Judge was not interviewed by all the members of the Selection Board who interviewed all the other candidates. In short, the procedures and behaviour have been stunningly unfair, lacking in openness and transparency. What has transpired cannot inspire confidence in a new appointments system.

For a matter as constitutionally important as the establishment of a body charged with the duty and responsibility of selecting our Sheriffs and Judges, the Scottish Executive should have parliamentary authority. What is required is primary legislation. A draft Bill should be introduced in the Scottish Parliament so that there can be proper, wide and constructive debate on the structure, power and authority of the Judicial Appointments Board. The public at large, including members of the Scottish Parliament and those who took the time and effort to respond to the elaborate consultation paper, will then have the opportunity through the Justice and Home Affairs Committee to scrutinise and comment on a Bill to introduce the Judicial Appointments Board. The Scottish Ministers cannot plead lack of parliamentary time. The introduction of a judicial appointments board has been on the cards in a definitive way since March 2001. When there was a need for part-time sheriffs, the Bail, Judicial Appointments etc. (Scotland) Bill sailed through the Scottish Parliament between May and July 2000. Time was found for that. If the Judicial Appointments Board is, in the words of Jim Wallace, to ‘command the support of the legal profession and the public at large’ then at least it should be the creature of statute. We are entitled to more than a hand-knitted version conceived by the Minister for Justice and his internal advisers.