Justice and Home Affairs Committee, 04 Jul 2000

Meeting date: Tuesday, July 4, 2000

Official Report 356KB pdf

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Judicial Appointments

Item 4 deals with consultation on judicial appointments. Michael Matheson will report to the committee, which will then consider its response to the consultation paper. Notes from the various meetings have been circulated.

I will try to be brief because I am aware that time is moving on and that members have other business to attend to.

I open by thanking Fiona Groves, who has assisted me in undertaking this process by organising meetings and producing notes for the committee. Members will see from the notes that have been provided that we met three organisations. We met the Faculty of Advocates, the sheriff court users group and the Scottish Human Rights Centre. There was a common view in those organisations that the process of judicial appointments had to change. They generally welcomed some of the suggestions that the Executive made in its consultation document, although some issues arose in relation to it. There was some difference in opinion between those in the legal profession and those outwith the legal profession on the way in which the criteria for appointment should change, but in general those from whom I took evidence welcomed the proposals.

A concern about the criteria for judicial appointments relates to the need to ensure that the legal profession—in particular the bench—is more reflective of modern Scottish society. Concerns were expressed about the absence from the bench of representatives from the ethnic minority communities and women. The fact has been highlighted that those who are currently training to enter the legal profession reflect the diversity in modern society more accurately. However, it will take some time before they come through the system. The view has been expressed that, if we are to set criteria for appointments, those criteria should ensure that women and people from ethnic minority communities who are suitably qualified are appointed to the bench as either sheriffs or judges.

I refer members to the seven points on the note that has been prepared by Fiona Groves. Under point 1, I have referred to the qualifications issue in relation to the quality of candidates. Everyone is agreed on the fact that people should be appointed on the basis of their ability; no one has called for any form of quota system to be introduced. If there is a fair and transparent appointments procedure, our judiciary will inevitably be more reflective of Scottish society.

Point 2 relates to the recruitment process. The legal profession recognises that there must be transparency in the process of appointing sheriffs and judges. Some questions were raised about how that transparency would be achieved. For example, vacant sheriff positions can be advertised in the national press, but judges' positions are not advertised in that way. It was discussed whether those posts should be advertised in the national press or in the specialist press.

If, after the posts have been advertised, the process involves a judicial appointments board, there may have to be two separate systems to deal with the recruitment of sheriffs and judges. For example, someone could approach the judicial appointments board for consideration as a sheriff, but they may have to be nominated by another interested organisation, such as the Faculty of Advocates, to become a judge. Any process that is instituted must differentiate between the way in which a judicial appointments board would appoint sheriffs and the way in which it would appoint judges.

Neil Brailsford—who was speaking as an individual member of the Faculty of Advocates, as the faculty had not finalised its views—expressed the concern that advertising judicial appointments in the media could deter individuals in the judiciary from applying for positions as sheriffs or judges. I was not persuaded by that argument. The issue is more about the confidentiality of the process, which people may think could be compromised by the advertisement of a position in the national press.

Point 3 concerns the establishment of the judicial appointments board. The evidence that was received showed a consensus that the board should be based in statute, although its size may vary. Some people have suggested that the board could increase in size if it were considering several applications for the position of sheriff, and that it could decrease in size if it were considering the appointment of only one judge. Another issue is whether the composition of the board should be biased in favour of the legal profession, or whether half its members should come from a lay background. There is also the issue of whether the period of tenure as a member of the board should be limited. It was suggested that, if the board is based in statute, the period of tenure could be set in line with that of the Scottish Parliament, which is four years.

There was consensus about the professional members who should be on the board, such as the Lord President or someone representing the faculty or the academic world. However, there was uncertainty over who should carry out the appointing. It was suggested that the head of the Commission for Racial Equality or the head of the Equal Opportunities Commission could perform that task. Concern was voiced, principally by those in the legal profession, that lay members may not be of the right calibre or have an adequate understanding of the legal process. Any lay members of the board would have to be of a sufficient calibre. It was clear that people felt that the remit and responsibilities of the judicial appointments board should include the appointment of both judges and sheriffs.

Point 4 concerns management issues. It was generally recognised that sheriffs principal were in an ideal position to take on a greater role in managing sheriffs within their sheriffdoms. However, concerns were expressed over the current work load of sheriffs principal and whether it would be realistic to expect them to take on an extended role.

Given that there have been concerns over the code of judicial conduct—concerns about the way in which some sheriffs undertake their duties, such as the time at which they start and their general attitude on certain points—it may be that the sheriff principal should take on a greater policing role. There was general support for that idea, although those representing the legal professions questioned whether such a code was required. It was suggested that any such code should include minimum standards and guidance on the attitude of sheriffs towards specific matters. Someone may require interpreting services, to which the attitude of sheriffs varies—some see it as more important than others do. A code of conduct should cover such matters.

Point 6 deals with part-time sheriffs and temporary judges. It was generally recognised that part-time sheriffs and temporary judges were necessary and provided flexibility, although it was felt that the purpose of the appointment of part-time sheriffs and temporary judges should be made known. The view was expressed that that process should be carried out by the judicial appointments board, but that the issue could be pertinently dealt with in the Bail, Judicial Appointments etc (Scotland) Bill.

Point 7 concerns relevant international comparisons. One example that was drawn to my attention was that of the Netherlands, where there is a combined system of judicial appointments: 50 per cent of judges are recruited from recent university graduates and the remaining 50 per cent are appointed much later in their legal careers. I recognise that such a change would probably start an earthquake among the Scottish judiciary.

That would be impossible in our system. The point is that, in countries such as France and the Netherlands, when people study law, they choose whether to study to become judges or to become practising lawyers—judges are recruited on that basis early on. That is not the way in which our system works.

I am aware of that. It was discussed at the time. However, the comparison is made so that we can consider whether we should go down that road in the future.

That is akin to tearing up the whole system and starting again.

That is why I said that any such change would be of seismic proportions.

That system produces a much better gender balance.

I imagine that it does. That was just one suggestion from someone who gave evidence.

I am happy to take any questions.

We want to give the clerks some guidance on how to draft a response. There is no expectation that we will be able to finalise it today. The draft response would be e-mailed to members in the early weeks of the recess. The closing date for consultation submissions is 31 July. We are seeking some assistance in drafting a response.

Let us go through the notes point by point. Point 1 was about criteria for appointment, qualifications, and qualities of candidates for the judiciary and equal opportunities. I am probably speaking for everyone on the committee in saying that we want to ensure the best possible candidates for the judiciary. Within that general provision, we would probably want a group of sheriffs and judges who reflect more nearly what we regard as normal society. However, that would have to be within the context of people who were the best possible candidates for the job. I say that again because I am not sure that the current system always produces the best candidate for the job.

By and large, High Court judges come from the Faculty of Advocates. What are the proportions of women and people from ethnic minorities in the Faculty of Advocates?

In this generation, there has been a huge increase in the number of women.

We have to start by getting women and people from ethnic minorities into the Faculty of Advocates.

That is half of it. When I was called to the bar in 1979, there were only two practising women members at the bar, perhaps three. Now, there are dozens upon dozens.

Okay. The selection process for judges must have some sort of tribunal or committee with the appropriate mix.

That is just a time factor.

There was recognition that we must ensure not only that the judges who are appointed are more reflective of Scottish society, but that the system is open. Apparently, the demographic of people who are currently studying for law degrees is more reflective of Scottish society, particularly in respect of the numbers of women and people from ethnic minorities. However, it will take time for that to filter through the system. We must ensure that, when those students come to apply for judicial posts, the system is fair, open and transparent.

One has to be careful on the representation of ethnic minorities. Very few members of the bar are from so-called ethnic minorities, although the number will undoubtedly increase. The basic problem is that, until recently, members of the ethnic minority community in this country did not go into the professions at all, certainly not the legal ones. For a variety of reasons, they would not enrol in courses that involved professional, vocational training. No system of judicial appointments can deal with that problem until it is addressed at a lower level.

We need to ensure that, when those people arrive at the appropriate point in their careers, there is a mechanism to ensure that appointments are open, transparent and fair.

Gordon Jackson is making a good point. We are right to say that there should be a mechanism to ensure that judicial appointments are as open as possible. However, in order to increase the number of representatives of ethnic minorities on the bench, we must first address the issue of the number of people from ethnic minority communities who are practising law. It is axiomatic that a person will never get on to the bench unless they are already practising law. It may be worth specifying that that issue should be addressed separately.

Proper procedures for advertising and interviewing can be set up through the UK Commissioner for Public Appointments, Dame Rennie Fritchie, to ensure that such matters meet equal opportunities requirements. We must have proper procedures and we cannot hope that a well-balanced tribunal will be created by accident; it should be done through the Commissioner for Public Appointments.

That takes us on to point 2, on the recruitment process. There was a certain amount of mirth about people not wanting it to be known that they had applied for a job unsuccessfully. It is fair to say that people do not like to apply for jobs, not get them and then have something that reflects on their professional standing. The current system operates on the basis that people who are unsuitable for the post are advised not to apply.

That point links to point 3, on the judicial appointments board. If someone applies to become a sheriff and their application and at least two references—for reasons of probity—are considered by the board, should that person be told just that they have not been successful or why they were not successful? Some companies inform people who have applied for jobs why they have been unsuccessful. That would allow people who wanted to reapply for the job to address the reasons for their lack of success the first time. There was some concern about whether the confidentiality of that system might break down. I am not particularly convinced by that argument. I am sure that we could create a system in which an individual could be told why they had not been successful. The question is whether the committee supports that point or believes that the issue should be considered further.

We might run into a real problem when we consider how much of that information goes into the public domain. Under normal circumstances, if a person applies for a job, they either get it or they do not—no one writes an article about the fact that the person did not get the job.

How will that information enter the public domain?

The appointment is a public one.

On that basis, if a judicial appointments board were set up, no one would apply to become a sheriff.

The legal profession operates very differently from Michael Matheson's example of managerial posts. Much of this has to do with the applicant's street cred, whether they are at the bar or practise as a solicitor. If someone is not selected and the reasons for that become public, that might have a significant impact on their standing within their profession, perhaps most unfairly. A person's position as a practising lawyer is based on their street cred.

I was concerned by a suggestion made by the Scottish Human Rights Centre, which said:

"The Board should tell candidates whether or not they had been assessed as meeting the required standard, and publish the list of results to ensure credibility of the process. Each candidate could be told (confidentially) why they did not meet the required standard. The general criteria expected could be published in reports by the Board."

That sounds pretty draconian, and I would like to know the reasoning behind it.

I want to clarify something. The consultation document points out that publication of the list will be in the board's triennial report.

That is a different issue.

I want to be clear about this. A job as a sheriff is advertised in the national press; an individual applies for it; the board considers the application, refuses it on whatever grounds and advises the individual why they have been refused. How can that information come into the public domain? The annual report might say that of the 700 applications considered, 500 were approved and 200 were not, and that 75 of that 200 were not approved because of lack of experience in criminal law, for example, and the rest for other reasons. That could be done without breaking confidentiality.

Michael, the fact is that Christine Grahame is right. The Scottish Human Rights Centre has suggested publishing

"the list of results to ensure credibility".

Although the organisation says that each candidate can be told confidentially why he or she did not reach the required standard, if you publish a list of results, some people will clearly be seen not to have come up to standard.

How will they know? Someone applies to be a judge, the judicial appointments board considers the application and refuses it—

Michael, read the briefing note prepared from the meeting. The Scottish Human Rights Centre proposes that the list of results should be published, and you can see from the feeling around the table that we do not agree with it. We are trying to give the clerks guidance here.

The proposal in the meeting was about publishing a list of reasons why candidates were not approved.

That is not what the briefing note says.

That was the context of the discussion.

That is why I asked the question.

The briefing note talks about publishing the list of results.

The list of results will not name candidates.

Well, the proposal is profoundly misleading then. If publishing a list of results does not mean naming candidates, what does it mean?

You can have a list of results which specifies the reasons why candidates have been refused without naming them.

What on earth would be the point of that? Would the list read "Someone was not capable because of" this reason or "Someone else was not capable because of" that reason? The inevitable question would be "Who are these someones?"

I am not clear about this list of results. Perhaps the results would simply be stated in the broadest possible terms—for example: "We had 35 candidates for three vacancies for sheriff. Fifteen candidates had not been qualified long enough."

As I pointed out to Christine Grahame earlier, that was the nature of the discussion.

I am your friend, Michael. I was just seeking clarification. Perhaps you could clarify that bit in your report. The wording is not clear.

Yes, the wording is extremely unclear.

Our report can reflect the need to address that issue.

That is the point that concerns me. We do not want to set up a system that simply knocks back all the behind-the-scenes stuff, or to have a system in which the only people who apply are the ones who already know that they will get the jobs.

Yes, but we do not want to throw out the possibility of greater transparency because of a misguided concern. You know, I am not in the legal profession.

The note states the Scottish Human Rights Centre's proposal in absolutely stark terms. Now you are saying that that does not represent the organisation's position.

I can see how you could interpret the wording like that.

It is not a question of interpreting the matter; it has been presented in bald terms in the note, and is obviously a misinterpretation of what the Scottish Human Rights Centre intended. You can take it that, whatever else we are talking about, we are not talking about publishing results in bald terms. How far are you prepared to go in these results?

All I am talking about—

Michael has lost the will.

To be honest, all that is required is to say which people were successful.

From evidence that I have taken, there are concerns about whether failed candidates should be informed personally and whether those results should be contained in some annual report. The results would not name individuals; however, if there is a consistency about why people are being refused—for example, if 15 have been refused because of a lack of experience—that could be mentioned. That would purely lead to greater understanding.

I would like to see other practical examples of a similar approach in any other area. Perhaps we can get some information on that matter.

That is nothing to do with me.

No, but I want to see what we are talking about here.

I do not know whether there are any examples; however, because the system is quite new, such results might give other potential candidates a steer about what is expected of them. If, as Michael Matheson says, too many people with not enough experience are applying, the results might indicate to other people that they should not waste the board's time if they do not have the experience.

Those analyses are undertaken all the time. I can offer only the example of examinations, where people receive a report afterwards to tell them where they did well or where they did badly. That gives a steer to teachers about how well they have been teaching their pupils. I know that it is not quite the same, but such feedback would be very important to failed candidates and to lawyers about what is and is not acceptable.

The test is not about feedback, but about what the public should know about the selection procedure for sheriffs. What comes into the public domain should really meet that public interest test.

Feedback encourages applicants—

That is an incidental point.

Surely we are here to encourage a bit of diversity.

That is not the point of publishing the list of sheriffs.

The recruitment process should be transparent, with open advertising of the posts. There is another issue about whether recruitment should happen on an ad hoc basis. Should vacancies for judges happen only when there is a vacancy, or should the board meet at set times during the year to consider a number of people on an approved list? That would mean that when a vacancy became available, a number of people would already have been approved.

Will they be ranked?

No one would be ranked; there would just be a pool of people.

We are now running into serious difficulties. We simply do not have time to deal with the matter at this level of detail.

I am not making the detail. It is up to the committee to decide whether it wants to do the report. I am just feeding back what I have been told.

Yes, but we are now trying to organise a draft response. It seems to me that if we are going to discuss those issues in such detail, we will be in real difficulty. Can we all agree that we think that general criteria for selection should be published? I do not think that there is a difficulty with that.

Members indicated agreement.

We can establish that as a basic position. We can also agree that we see the value in open advertising, which will advertise the criteria. I am not sure that we have to decide whether it should be ad hoc or periodic.

Consideration should be given to the arrangements for it.

We can raise it as a question—will it be ad hoc or periodic? I do not think that we have to make an issue about it.

It is a process that should guarantee confidentiality.

Confidentiality is important for the individuals concerned. That must be balanced against transparency. These are important public appointments. It is not easy to decide where the balance might lie, but we can say that there would be value in considering examples when the kind of thing that you are talking about happens: in an annual report there is a broad brush indication that, for example, too many of the people coming forward have insufficient experience. There is value in examining some of that, but it must be balanced against confidentiality. If it gets to the level of saying, "One person was refused because of X," I am afraid that in the legal community in Scotland it would be about five seconds before everybody knew who that person was. That must be taken on board. We are talking about a relatively small community of potential members of the bench. In the main they know one another and it would not take much for those matters to become very well known. The public will also be interested in this via the media. We must be careful how we handle this matter.

It might be worth Michael Matheson looking at whether that kind of information is published on other public appointments.

Christine, I am not looking at anything. My job is finished. I have taken the evidence. It is for the committee to consider this. We should be quite clear about that.

We could look at benchmark practice in other public appointments.

You can go and look at it.

It might be helpful to consider the process by which the Auditor General for Scotland was appointed.

We should examine the practices for other appointments that we could apply to this process. We are talking about publishing criteria, advertising the job and establishing criteria—which also emphasises the need for greater balance in the overriding context of people who are properly qualified.

On management issues and the role of the Lord President and the sheriffs principal, I do not want to go there as a committee. I am not sure that we are in any position to judge what the existing work load of sheriffs principal or the Lord President is. It may be enough to include a paragraph in our response that says that there may be an issue about relative work loads—if we impose a greater work load on some individuals—but without an assessment of existing work loads we cannot tell whether it would be too onerous.

I think that a code of judicial conduct would be useful. I do not know what other members think. Those of us who have practised in the courts are aware of occasions when judicial conduct has perhaps not been what it ought to be.

The evidence that I received suggested that it would be useful for judges and those who use the courts.

Yes, I think that a code of judicial conduct is important. Decisions would have to be taken about what would be in the code, but I think we should go down that road.

In my view, part-time sheriffs and temporary judges should be covered by any judicial appointments system. If we are going to revise the judicial appointments system, it would be difficult to justify not including them.

That also was suggested in the evidence that I received.

Are members happy with that so far? This should give some guidance to the clerks.

I missed part of what you said. Did we touch on lay representation on the judicial appointments board? There is an issue about whether it should be 50:50 or whether the balance should be in favour of people with a legal background.

It depends on how you define lay. A professor of law at a prestigious university could be regarded as lay. Is he lay or not?

The view of the legal profession was that it should be someone of sufficient calibre.

That does not exactly take us very far forward.

A professor of law is not a lay person in the same sense as a professor of another subject.

On the other hand, he is not a practitioner either.

He probably is to a degree, oddly enough.

I do not think we should get bogged down on this, but the composition of the judicial appointments board should be given full consideration.

It certainly should comprise some lay representation; how much is a different matter.

I favour 50:50, but another lawyer was against that. I do not think that we should specify the proportion. The evidence that I received from the three parties that were present was that the majority favour its being 50:50.

That is because they are not lawyers.

I am sorry, but that was the evidence that I took.

From whom?

From the people you have notes from.

From Neil Brailsford QC? Was he in favour of 50:50 representation?

No.

I would not have thought so.

The Scottish Human Rights Centre was in favour?

Yes.

And the sheriff court users?

Yes.

That is what you would expect.

I do not think that our committee report should reflect the evidence of one Queen's counsel because some lawyers on the committee are not keen on 50:50 representation.

This is a serious matter. It is about professional competence.

It is a serious matter as it is about assessing people for some of the most important jobs in our society.

I do not think that we should specify anything. We should say that there should be lay members on the board and that its composition requires further consideration.

The proposal of 50:50 representation worries me. It does not worry me because I am a lawyer. If I have to go to a consultant for my heart, I would sooner the folk who decided that it was appropriate for him to be a consultant knew about heart surgery rather than that a couple of lawyers and a few other people decided to make him a heart surgeon. I am keen on people having expertise.

That sounds like a good argument for keeping the status quo.

I do not think that there is any need for the report to suggest that lay representation is at a certain level. We can say—and the evidence is clear—that there should be lay representatives on the board. The proportion requires greater consideration.

That is fine.

The relevant comparisons that are in the consultation document are almost impossible to apply to Scotland because they are not from our system. The systems that are more like ours are those in places such as Australia, Ireland, the United States and Canada. We do not have information on those.

I do not know whether that helps a bit. Members should keep a watch on their e-mail because the draft response will be sent around.

We will now leave the issue of judicial appointments. We do not need the official report, although we are not going into private session.

Meeting continued in public until 18:09.