Select Committee on Lord Chancellor's Department Second Report

2. Lessons from the Scottish experience

15. Our general impression was that the Judicial Appointments Board had settled down well, and was seen as successful even by those who had initial reservations about its creation or its structure. It was also particularly welcomed by those who regarded the old system of appointment as too open to political influence, too secretive, or too dominated by those practising in Edinburgh.

Independence vs accountability

16. All those we met during our visit stressed the vital importance of independence, and of the perception of independence, in the recommendations for appointment made by the Board. They also stressed the importance of the independence, and again perception of independence, of Board members themselves. Just as public confidence in the judicial system depends on the impartiality of the judiciary, so public confidence in the judicial appointments system depends on the impartiality of the Board.

17. At the same time, however, the need for a degree of accountability for the operation of the system as a whole was also recognised. It was generally agreed by those to whom we spoke that it was not possible to remove the hand of the Executive entirely from the judicial appointments system. Appointments are made under the authority of the Crown, on the advice of the Executive's First Minister, and there is no other obvious source of authority short of a system in which judges are elected (which raises many other issues). Moreover, responsibility for the overall efficiency of the justice system continues to rest with Ministers. In consideration of a judicial appointments commission, decisions will have to be made in a number of crucial areas about precisely how the balance between independence and accountability can best be struck.

Necessity of placing the Board/Commission on a statutory footing

18. It was generally agreed, for instance, that the independence of the Board/Commission could only be truly enshrined if it is put on a statutory footing. At present, the Scottish Board is an administrative construct, created and sustained by the Executive. The flexibility allowed by its initial status as an administratively-created advisory body has allowed it a certain amount of latitude to determine its own working methods and procedures, which might not have been possible had it been on a statutory basis from the start. Nonetheless, the members of the Scottish Board whom we met were quite clear, as were the majority of our other interlocutors, that the Board should be set on a statutory basis in order to enshrine its independence. However well the system might be considered to be working without legislation, it was considered essential that legislation be brought forward as soon as possible to set the board on a statutory footing.

Provision of guidance to the Commission

19. When legislation establishing a Commission is brought forward, however, decisions will have to be made about what guidance should be provided to it on the performance of its functions, and what status that guidance should have. If it is felt, for example, that the appointments system should aim to produce a judiciary "more reflective of society", as is the declared intention in Scotland, should the responsible Minister issue guidance as such, or leave the matter entirely to the discretion of the Commission? If he is to issue guidance, should it be statutory guidance? If so, what Parliamentary involvement should there be in the issuing of that guidance? Guidance has been issued to the Scottish Board, but it is of course currently non-statutory; it was described to us as "essentially a compendium of best recruitment practice".

Funding

20. Issues of independence and accountability also arose in consideration of the funding of the Board. Opinion amongst those to whom we spoke was divided on this issue. Some felt that maximum independence should be secured by the "top-slicing" of a sum for the running of the Board to be determined by someone other than the Executive, in a similar way to Audit Scotland (the Scottish equivalent of the National Audit Office). Others believed that considerations of accountability dictated that Ministers should be directly responsible for ensuring that the Board was sufficiently well-resourced. These matters will be equally relevant to the establishment of a Commission.

Openness and transparency

21. Crucial to both independence and accountability, however, are openness and transparency. Naturally the confidentiality of individual applicants must be respected, but with that caveat it was agreed that procedures both for appointment of the judiciary and for appointment to the Board/Commission should be as open and as transparent as possible.

Composition of the Board

Balance of legal and lay representation

22. The Judicial Appointments Board for Scotland is unusual amongst similar bodies internationally, we were told, in that it does not contain a majority of legal members. The Board has a lay Chairman and four other members, balanced by five legal members drawn from both the judiciary and legal practitioners. Whilst there were initial concerns about the degree of lay representation, and some continued to believe that there should be a majority drawn from the legal profession, no-one to whom we spoke felt that the Board with its current makeup had not worked well in practice. Indeed, there was general acknowledgement that the lay members—who had significant personnel and recruitment expertise—had brought a great deal of value to the appointment process. We were told that discussions on candidates did not result in divisions of opinion in which the professional and lay members were ranged on opposite sides.

23. Views will need to be sought about the appropriate makeup of the Commission. One argument against the presence of a majority from the legal profession is that a Commission dominated by the judiciary and lawyers might produce a self-perpetuating judicial oligarchy, hindering attempts to make the judiciary more reflective of society as a whole. Among the arguments against the presence of a majority of non-legal appointees is the risk that the Commission might become dominated by political placemen or women, appointed by the Minister to ensure the appointment in turn of judges of their preferred political persuasion or philosophical tradition. Consideration will also need to be given to what the lay membership will be expected to bring to the Commission.

Appointment of individual members

24. This leads to the question of how the individual membership of the Board should be determined. Almost inevitably the relevant Minister must have ultimate responsibility for appointment to the Commission. The view expressed to us in Scotland, however, was that it was vitally important that all members, legal and lay, should be seen to be politically independent as well as of the highest possible calibre. How this can best be achieved will be a further matter for debate.

25. The initial appointments of lay members to the Scottish Board were of people of proven ability and experience who had no record of active involvement in politics. The question arises as to whether it will always be possible or desirable to exclude people who have known political views, and how, if they were not excluded, it would be possible to ensure a balance of opinion. The insistence on "non-political" lay members was seen to be important in Scotland, which has a relatively recent history of political appointments to judicial and legal posts, and seems to have been a significant factor in achieving recognition that the Board is completely independent.

26. Another question which arose in the course of our discussions was whether legal members might themselves be elected by their representative bodies. The Scottish Board contains the Dean of Faculty and a former president of the Law Society. Both were "preferred candidates" of their respective organisations, but both had been appointed through the same procedure as other members. Opinion was divided as to whether independence was better secured through "caucus" nomination as described above, thus removing the power of appointment from the Executive, or through fair and open competition amongst all candidates for appointment to the Board in each category.

Tenure

27. Another issue relating to the independence of the Board/Commission is that of the nature and length of tenure of its members. It was felt that appointees should have security of tenure, to avoid the risk of their removal if they make the "wrong" appointments. It was also felt, however, that appointment should not be indefinite, as this would risk the stagnation of the appointments process. Views will need to be sought on the appropriate length of tenure of Commission members, as well as whether appointments should be renewable. The desirability of staggering appointments to the Commission, to ensure continuity, should also be considered.

Conflicts of interest

28. Whilst the presence on the Scottish Board of practising lawyers was considered essential, it also raised two further issues. The first is the necessity, accepted by Board members, that they withdraw from an appointment process if there is any risk of a conflict of interest—for example, if a close colleague, friend or family member applies for appointment. The second is the possibility that Board members might themselves be suitable for judicial appointment. Board members are considered ineligible for appointment whilst they are on the Board. The question arises of how long after a person ceases to be a member he or she should remain ineligible, given that it would probably be some time before there were any number of Board/Commission members who had not worked closely with the applicant and would not therefore rule themselves out from considering the application.

Appointments to be made by the Commission

29. The Judicial Appointments Board for Scotland does not have the power to make appointments itself. Rather, its role is to make recommendations to the First Minister, which it does by placing recommended candidates in a ranked order; the First Minister then makes the final decision. That decision is only made after consultation with the Lord President of the Court of Session. We were told that the Minister had on every occasion so far accepted the advice of the Board. We were also told that the Lord President had not so far had occasion to advise against a recommendation of the Judicial Appointments Board (JAB), which he would have done if he had considered that there was a fundamental objection to the recommended person which the JAB had overlooked or under-estimated.

30. Scotland is, however, constrained by the terms of the Scotland Act, which provides that judicial appointments are to be made by the First Minister (after consultation with the Lord President of the Court of Session).[4] No such constraints need necessarily apply to the body to be established for appointments in England and Wales.

31. A number of questions arise:

• should the Commission be responsible for making appointments, or for recommending candidates for appointment to a Minister? (We note that the press notice announcing the creation of an independent commission referred to the commission being given the role "to recommend candidates for appointment as judges", implying that the Government was intending that the final decision on who should be recommended to the Queen should remain with Ministers[5])
• should the Commission be responsible for all appointments, or should any senior appointments fall outside its remit?
• if any senior appointments (for example, appointments to the proposed Supreme Court or of the head of the judiciary) were to be excluded, how should those appointments be made?
• what role would there be in the process for the head of the judiciary (assuming that the head of the judiciary is not him or herself to be a member of the Commission)?

32. Depending on the level of seniority of appointment at which the Commission will be expected to operate, the Government will also wish to consider what, if any, implications the creation of a judicial appointments commission will have for the arrangements for judicial appointments in Scotland enshrined in the Scotland Act. The Government will also need to consider the implications for appointments to the proposed Supreme Court (to which Scottish civil cases may be brought on appeal) and to the Judicial Committee of the Privy Council, which rules on devolution matters.

33. Another question to be considered is that of the tier of the judiciary at which appointments should begin to be made by the Commission. The Judicial Appointments Board for Scotland makes recommendations for appointment at every level except the two most senior posts. Scotland, however, is a small enough jurisdiction to make this possible. A different and more extended structure would be required for England and Wales. If regional commissions were set up, that would raise further questions, such as whether the membership of such commissions should be drawn from within or outside the region concerned. If the Commission takes over responsibility for appointments of justices of the peace and of adjudicators and tribunal chairmen currently appointed by the Lord Chancellor, a significantly larger administrative structure will need to be brought within the Commission.

Procedures for assessment of suitability for appointment

34. The Judicial Appointments Board for Scotland advertises openly for candidates, as and when a vacancy arises. It does not have the power to invite applications from those who might not otherwise have applied. All Members of the Board are directly involved with the interviewing of candidates. Its recommendations are presented to the Minister in the form of a ranked list of those considered suitable for appointment. That way there is some flexibility to make appointments from lower-ranked candidates should further vacancies arise during the process.

35. Once again, a number of points arise:

• is it appropriate to advertise for each vacancy, or should there be an annual round of interviews for appointments at certain levels?
• if there is to be an annual round, to which appointments should that annual round apply (recognising that some more senior vacancies, for example, will arise only irregularly)?
• should the Commission have the power to invite applications from those who might not otherwise apply?
• if the Commission itself is not to be the appointing authority, how should its recommendations be presented to the Minister:
• a single "take it or leave it" option for each vacancy
• a ranked list of suitable candidates (as is the case with the Scottish Board)
• a "pool" of suitable candidates from which the Minister may choose?
• how should unsuccessful candidates nevertheless assessed as suitable for appointment be treated? Should there be a period of time within which those candidates should not have to undergo the interview procedure again should further suitable vacancies arise, and if so, how long should that period be?

36. Decisions will also have to be made about the procedures which the Commission will use to assess candidates. The Scottish Board presently uses a "classic" process of shortlist and interview. The importance of ensuring as many members as possible of the Board were involved in the interview process was emphasised. However, we were also told that the Board was aware of the assessment centre procedures used in England and Wales, and that it would give some thought to them when developing its own processes and procedures. The question arises of the extent to which the Commission should be able to decide its own assessment procedures, independently of Ministers or of its enabling legislation. The size of the Commission and the terms of appointment of its members will also have to be considered in the light of the number of appointments which will have to be made and the desirability of ensuring that the Commission is able to make collective decisions in which all members have been directly involved.

Diversity

37. The Board recognised the need to increase diversity in the experience, gender balance and ethnic background of judicial office holders. There was some evidence that the establishment of the Board had already opened up the appointments process to some extent, for example in attracting applications from more practitioners based outside Edinburgh. Many of our interlocutors, however, expressed the opinion that the appointments which had been made so far were not very greatly different from those which might have been made under the previous system. It was recognised that the "pool" of applicants from which judicial appointments were made was reflective of the historic makeup of entrants to the legal profession. Efforts were therefore required to increase diversity not merely among judicial appointments, but among entrants to the legal profession as a whole. Given the proportionately larger ethnic minority population in England and Wales compared to that in Scotland, this is an issue which will assume even greater importance when considering arrangements for this part of the United Kingdom.

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4   See also para 0 above. Back

5   op cit Back

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Prepared 4 July 2003