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The Judicial Appointments Board – a misnomer

1 August 02

Criticism of the Judicial Appointments Board on the ground that it lacks any real authority [NB correction at Vol 47 no 10, page 10]

by Jamie Gilmour

The so-called Judicial Appointments Board for Scotland has at last arrived to something less than a fanfare. Many of the profession would be unaware of its very existence until they saw notices in the Scots Law Times of 21st June 2002 inviting applications for appointment to the office of Judge of the Court of Session and also Sheriff Principal of Lothian and Borders. One reason for this is that the Scottish Executive bungled the public announcement of the creation of the Board with the result that only one national Scottish newspaper gave column space with details of the Board members. The membership of the Board should have been made public at the end of May but the information did not appear on the Scottish Executive website until Tuesday, 11th June. The Scottish Executive Justice Department had, however, announced back on 8th April that Sir Neil McIntosh, who was Chief Executive of Strathclyde Region from 1992 until it was disbanded in 1996, would be Chairman of the new Board. The decision to appoint a layman as opposed to a lawyer as Chairman is unique in Europe. France, Italy, Portugal and Spain, for example, all have judicial self-governing bodies to control judicial appointments. Some might consider it extraordinary to appoint a lay chairman considering that the Justice (Northern Ireland) Bill presently winding its way through Parliament provides for the setting up of a judicial appointments commission for neighbouring Northern Ireland with the Lord Chief Justice as Chairman together with five judicial members, five lay members and one legal profession member.

The new Scottish ad hoc Board has three judicial members, two legal profession members and five lay members, including the Chairman. Membership of the Board is as follows:

Sir Neil McIntosh; Sir Robert Smith, Vice Chairman of Deutsche Asset Management; Professor Joan Stringer, Principal of Queen Margaret University College and soon to be Principal of Napier University; Mrs Barbara Duffner, Head of Personnel North for Royal Mail plc; Professor Alan Paterson of Strathclyde University who is Director of the Centre for Professional Legal Studies; The Right Honourable Lord Maclean, a Judge of the Court of Session; Sheriff Principal Bruce Kerr, QC, Sheriff Principal of North Strathclyde; Sheriff Douglas Allan, Sheriff of Lothian and Borders at Edinburgh and a past President of the Sheriffs’ Association; Colin Campbell, QC, Dean of the Faculty of Advocates, and Michael Scanlan, Solicitor and former President of the Law Society of Scotland.

No provision appears to have been made for substitutes for this new Board. It is almost inevitable with a membership count of ten that all members will not be able to attend candidate interviews or a member will require to disqualify herself or himself from Board interviews due to some conflict of interest. Astonishingly it could mean that members of the judiciary, and there are only three, could be absent when candidates are being interviewed for possible nomination for the judiciary. Perhaps it is not seen as a problem by the Scottish Executive when it is remembered that Jim Gallagher, Head of the Scottish Executive Justice Department, a member of a previous ad hoc selection board, merely excused himself from interviewing one candidate considering it appropriate to sit in on all the other interviews.

Jim Wallace, QC, the Justice Minister, in March 2001 announced that the Scottish Executive intended to establish a judicial appointments board whose members will be appointed following Nolan procedures. The Scottish Executive has, however, failed to follow Nolan procedures. There has been no public announcement of how those selected were nominated. There has been no information on whether any Board member has been involved in any political activity in the last five years. There has been no information on length of appointment. There has been no confirmation of remuneration to be paid to Board members. However, readers will be interested to know that 119 applications were received for lay member posts after advertisement. An interview panel was set up by the Justice Minister consisting of Lord Ross, former Lord Justice Clerk, and the aforementioned Jim Gallagher, with Alastair Dempster, former Chief Executive of TSB and presently Chairman of Sportscotland, as independent assessor. Interviews for possible appointment to the Board were completed in February 2002. It is understood that the Lord President of the Court of Session nominated Lord Maclean as a Board member, the Sheriffs’ Association nominated Sheriff Allan and the Sheriffs Principal nominated Sheriff Principal Bruce Kerr, QC. It is not known how Colin Campbell, QC, or Michael Scanlan were appointed. It is not known how many applications were received for legally qualified member posts following public advertisement.

The Chairman, Sir Neil McIntosh, is understood to have been appointed for a period of three years at a salary of £7,500. The time commitment is expected to be two days per month. That works out at £312.50 per day. Other lay members of the Board are to receive £170 per day. Considering that Dyno-Rod won’t come out for £170 per day, the Justice Minister is clearly expecting quality without paying for it. It has to be concluded that lay members are undertaking their responsibilities out of a sense of public duty. The three judicial members of the Board will, of course, receive no additional remuneration. Another sacrifice to be noted is that Colin Campbell, QC, as Dean of the Faculty of Advocates, would be a prime candidate for appointment to judicial office but by agreeing to sit on this new ad hoc judicial appointments board he has disqualified himself from any judicial appointment during the life of this Board.

Apart for the debacle of the public announcement of the setting up of the Board, the singular failure of the Justice Department to have any public debate whatsoever on the structure and content of the Judicial Appointments Board has not assisted the Board’s credibility. The Justice Minister has indicated that legislation will be introduced to establish a Board with Parliamentary authority ‘when time can be found’. What Jim Wallace, QC, is asking the profession in particular and the public at large to believe is that time has been found for pieces of draftsmanship such as the Dog Fouling (Scotland) Bill and the Fur Farming (Prohibition) (Scotland) Bill to come before the Scottish Parliament but no time could be found for a Bill to set up a body as constitutionally important as a judicial appointments board. Sadly, the only Parliamentary questions asked concerning judicial appointments were questions seeking assurances from the Justice Minister that masons and members of secret societies would not be appointed. It is seriously disappointing that this has been the level of interest by members of the Scottish Parliament but it is substantially due to the behaviour of the Scottish Executive in setting up the Board. There is serious suspicion that within the Scottish Executive coalition there is a strong group against the creation of a Board with authority to make judicial appointments. The failure to have public debate and statutory authority for this Board has not bolstered public confidence. It has certainly not brought the legal profession ‘on board’.

This Judicial Appointments Board for Scotland is just another ad hoc board. It has no power or authority. It is independent only in respect of its deliberations and nominations for appointment. Authority for appointment of our Judges and Sheriffs will remain with the Scottish Executive. There is no obligation whatsoever on the First Minister or the Justice Minister to appoint a particular individual nominated by this Board. Disturbingly, the Lord Advocate will still be involved in the nomination process despite the fact that the profession has had enough of the criticisms of patronage and cronyism in appointments. Jim Wallace, QC, when he announced in March 2001 the intention to set up a Board said ‘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’. This begs the question of how the Lord Advocate will know if there is uncertainty unless the list of nominations is passed to him for approval. And what on earth is a case of uncertainty where the Board has sifted applications and carefully interviewed candidates? Will it cover the situation where the Lord Advocate doesn’t think that a particular face will fit? The Lord Advocate, as another prime candidate for judicial appointment and an individual in the midst of political activity, should not be involved in any way in the appointment process.

Board members will require to observe confidentiality in their deliberations and nominations. Only they, in theory, will know if their nominations are accepted and, if accepted, in the order they are provided. It remains to be seen if any Board member will find his or her position untenable if the First Minister and the Justice Minister (and the Lord President of the Court of Session in the case of the appointment of a Judge of the Court of Session) do not accept their recommendations  and in the order provided.

The Latimer House Guidelines adopted by member countries of the Commonwealth in 1998 deal, amongst other things, with judicial autonomy. The guidelines point to judicial appointments being made on merit by a judicial appointments commission established by statute or by constitution. Until this happens in Scotland, The Judicial Appointments Board for Scotland is a misnomer. It should be called The Judicial Appointments Recommendations Board for Scotland.

Jamie Gilmour Is a former secretary of the Temporary Sheriffs Association