Conclusions
The Judicial Appointments Board for Scotland
1. 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. (Paragraph 15)
Independence vs accountability
2. 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. (Paragraph 16)
3. At the same time,
however, the need for a degree of accountability for the operation
of the system as a whole was also recognised. 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. (Paragraph
17)
4. 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.
(Paragraph 18)
5. When legislation
establishing a Commission is brought forward, 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. (Paragraph 19)
6. Issues of independence
and accountability also arose in consideration of the funding
of the Board: these matters will be equally relevant to the establishment
of a Commission. (Paragraph 20)
7. Crucial to both
independence and accountability, however, are openness and transparency.
Procedures both for appointment of the judiciary and for appointment
to the Board/Commission should be as open and as transparent as
possible. (Paragraph 21)
Composition of the Board
8. Views will need
to be sought about the appropriate makeup of the Commission. (Paragraph
23)
9. 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. (Paragraph
24)
10. 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.
(Paragraph 26)
11. 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. (Paragraph 27)
12. 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.
(Paragraph 28)
13. A number of questions
arise in relation to the issue of the appointments to be made
by the Commission:
- should the Commission be responsible for making
appointments, or for recommending candidates for appointment to
a Minister?
- 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)? (Paragraph
31)
14. 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. (Paragraph 32)
15. Another question
to be considered is that of the tier of the judiciary at which
appointments should begin to be made by the Commission. A different
and more extended structure would be required for England and
Wales, which is a far larger jurisdiction than Scotland. 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. (Paragraph
33)
Procedures for assessment of suitability for appointment
16. 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? (Paragraph
35)?
17. 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. (Paragraph 36)
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