Contention over confidential soundings

The emphasis on “an inclusive approach” to the consultation process on a new system of judicial appointments is evidenced by the weight of responses. The legal establishment, and many other organisations besides, have submitted extensive replies to the myriad of questions raised in the Minister for Justice's document. In his foreword Jim Wallace expressed the hope “that this consultation paper will generate a wide and constructive debate”. In this he cannot be disappointed, and the Executive has plenty to consider before making an announcement in the next few weeks. In the meantime, this sample of responses to some of the pivotal questions might offer clues to the thinking of the key organisations whose opinions will help shape the future system of judicial appointments.

Confidential soundings

The Consultation Paper asked  Is the potential impact on their professional practice a necessary or sufficient reason for maintaining the present system of confidential soundings of candidates for judicial appointment.

This question attracted a broad spectrum of opinions. In favour of retaining the system of confidential soundings are bodies including the Council of the Sheriffs' Association who state “we can see no possible moral basis on which such soundings of people, who in the nature of the case have not put themselves forward as applicants, can be made other than confidentially at least in the first instance. An open list of candidates would be likely to embarrass rather than assist the selection process”. The Sheriffs Principal concur that “a member of the board should be free to speak to the person in question in confidence in order to see whether an application might be forthcoming”. They add “frankly we are appalled by the suggestion that there should be any publication of names other than that of the candidate who is ultimately successful. Any publication of names, even if restricted to those deemed suitable or 'successful' in the sense in which that word is used in the Paper, could have disastrous consequences for the professional practice of those concerned.”

The Faculty of Advocates “consider that there are few senior members of the profession who would wish the fact that they were being considered for judicial appointment to be made public. It is essential that nominations or applications for judicial office should continue to be treated in the strictest confidence”.

The Law Society of Scotland “agree that the potential impact on their professional practice is a necessary and sufficient reason for maintaining the present system of confidential soundings of candidates for judicial appointment”. However, they add: “Such soundings, are not by themselves a sufficient basis for selection. They should be no more than part of a wider, more open, system”.

The University of Glasgow's Centre for Research into Law Reform also back the method of confidential soundings. Their reasons are twofold, highlighting “many clients are disappointed or annoyed when, in the middle of a large or complicated litigation, senior counsel is appointed to the bench”. They also point out “the problem of possible rejection. If a member of the Bar is known to have applied for judicial office and then is known to have been rejected this would be bound to be a factor which might have an adverse effect on that person's future career or prospects”.

Meanwhile, the Scottish Parliament's Justice Affairs Committee notes “the utmost concern of publicising the names” and recommends “a balance will need to be struck between transparency and confidentiality of procedure”.

Antagonism to the status quo is displayed by The Glasgow Bar Association who contend  “the present system reeks of patronage, is incestuous in its nature and maintains senior appointments of the Judiciary within a very small circle. If someone is interested in applying to become a member of the Senior Judiciary, then the procedure should be well established and open. It is for a candidate to consider whether the knowledge of his peers that he has applied for a judicial appointment and the risk he thereby takes, justifies any financial loss or loss of personal pride”. Groups such as the Scottish Human Rights Centre and the Scottish Legal Action Group also indicate they see no reason why the system of confidential soundings should be maintained.

Offering an “outsider's” perspective, The Association of Scottish Police Superintendents comment “it is doubtful if, in the modern era, practising lawyers would be deterred from applying for posts due to concerns about being rejected. The reliance on confidential soundings is outmoded in modern personnel management and in public appointments, where transparency and openness are important considerations. Lawyers are no different from most others in the jobs market”.  

The Equal Opportunities Commission reiterate themes developed in an article in July's edition of the Journal which suggested there remains in place a glass ceiling preventing women solicitors from reaching senior positions. They express the view “that the practice of canvassing opinion is certain to risk introducing impressionistic and subjective factors into the recruitment process”. Echoing the findings of the Dundee University research detailed in the Journal they note “many women applicants may well not have established an extensive network of professional contacts, thus restricting the spread of senior practitioners who are in a position to comment on them. Heavy reliance on canvassed opinion could represent a serious obstacle to many women who could demonstrate their suitability for appointment in every other respect”.

Judicial appointments board

The question in the consultation document as to whether a Judicial Appointments Board should be constituted may be somewhat academic - there seems little doubt that the Executive is predisposed to setting up such a body - and indeed the idea wins widespread support from the respondents. There’s unanimity too that the board should be established by statute rather than administrative arrangement and common ground is also found as to the composition of the board - though the sources from where lay members ought to be drawn attracted a greater diversity of opinion.

One of the most detailed responses came from the Law Society of Scotland who suggest a body made up of seven members, incorporating, for Shrieval appointments, a representative from each of the Court of Session/High Court Bench; the Sheriffs Principal; the Shrieval Bench; the Faculty of Advocates; the Law Society of Scotland (a solicitor with experience of court practice) and two lay members with “proven ability and experience and a track record of achievement in public life or business with the ability to judge and assess people”. They add that there should be public advertisements for lay membership and for appointments to the Court of Session or High Court, the sheriff should be replaced by a second judge from the existing Senators. Broadly similar proposals are made by the Council of the Temporary Sheriffs' Association, who opt for a Senator of the College of Justice, a Sheriff Principal, a sheriff, a senior member of the Faculty of Advocates, a senior member of the Law Society of Scotland and two lay members, while the Sheriffs' Association argue for greater scope for judicial representation on the board because “candidates for appointments are best assessed and in most comparable situations commonly are assessed, by people who know from experience what the demands of the position really are.”

For Shrieval appointments, the Faculty of Advocates opts for a board comprising a serving judge, sheriff principal, sheriff, representatives of both branches of the practising profession and the two lay persons as suggested in the Paper. For Supreme Court appointments, their preference is for a compact group of four, being a serving judge, senior member of Faculty, senior court solicitor and lay representative.

Unsurprisingly groups such as the Scottish Sheriff Court Users Group and the Scottish Consumer Council propose extensive lay membership, in the latter case amounting to 50%. Curiously, the Glasgow Bar Association voice the greatest scepticism as to the merits of lay representation on the board, preferring a body consisting of “representatives from the Glasgow Bar association, a High Court Judge, Faculty of Advocates, Crown Office and Law Society of Scotland”.

Use of retired judges

The Centre for Research into Law Reform suggest that “there should be sufficient resources in the judicial system to provide adequate cover for all the cases which have to be considered”. While the Centre see no particular problem with the use of retired judges in emergency situations they “feel that temporary judges should not be used as an essential part of the system. The whole point of having judicial retirement ages is to ensure that people do not carry on as judges beyond what would be regarded as normal retirement age”.

The Justice and Home Affairs Committee are more amenable to the use of retirees, stating “retired judges are a useful resource if used occasionally, assuming that the individual had performed satisfactorily before retirement”. A contrary view is expressed by a meeting of legal practitioners in Kilmarnock and Loudoun, convened by Margaret Jamieson MSP and Des Browne MP. The collective response was adamant; “the appointment and use of retired judges should be discontinued”. The Sheriff Court Users Association express the view “that the need to use retired judges is symptomatic of a lack of numbers, or just as seriously, a lack of expertise among those currently still working. If the system operated efficiently there should be no need to make use of this practice”.

Others in favour of the retention of the present arrangements include The Law Society of Scotland, and the Faculty of Advocates whose response states 'the use of retired judges has been of great assistance in providing flexibility in the face of pressure of business or unavailability of permanent judges". The Sheriffs' Association highlight “the flexibility it provides and the asset of being able to draw on accumulated experience”. They also draw attention to the widespread use of this practice in many American and Commonwealth jurisdictions. Also content with the use of retired judges are organisations including the Scottish Legal Action Group and the Association of Police Superintendents.

Most vociferous in their objection to the retention of the present system are the Glasgow Bar Association whose submission contends “the present practice is a disgrace. The legal profession is one of the very few professions where qualified persons who have retired are allowed to return. They have already qualified for a substantial pension and then are paid further substantial sums on a daily basis. What is the point in having a retirement age at all? Indeed, this should be taken further to include not only those who are retired judges, but who have retired in any part of the profession, whether in private practice or from Crown Office. There is a substantial pool of younger, willing, eager candidates who can be used”.  

Periodic recruitment exercises

The Executive have proposed that a “slate” of appointable candidates be selected for the appointment of Sheriffs Principal and Sheriffs, which would remain valid for a period of time to be determined. The paper asks for views as to Do you agree that the Judicial Appointments Board should mount periodic recruitment exercises rather than ad hoc exercise in response to specific vacancies?

The Faculty of Advocates “agree that carrying out a general selection process to identify a ”slate” of suitable candidates would avoid wasteful repetition in the submission and consideration of applications". The Faculty's suggestion is for candidates to remain on the list for three years before their eligibility lapses, with the option to re-apply after the three years are up.

The Law Society of Scotland concur with the three year period on the slate, adding “even if there is a slate of appointable candidates, specific vacancies should still be publicly advertised so that others who are eligible but have not sought to be included on the slate would have the opportunity of applying for the specific vacancy”.

Coming out against the concept are the Sheriffs Principal who reject the idea that the slate arrangement will achieve the objective of securing the appointment of the very best candidates. Instead, the board “should be free to decide the best procedures for itself”. Acknowledging the slate might allow for more rapid filling of vacancies, their primary reservation “is that, unless a slate were to be operated in a very flexible manner, it is likely to produce a list of names of less than outstanding candidates who are seeking an appointment of any kind and in any court, and it may actually operate as a deterrent to more able potential candidates”. The Sheriffs Principal outline further objections to the system, including the possibility of a superior candidate arising before the initial slate had been exhausted, would the name on the slate be given priority? “Such a system would quickly fall into disrepute if it were to be seen as producing  second-rate appointments at the expense of very good candidates”. Further concerns as to confidentiality are also mooted, with the suggestion being that a slate system would serve only to feed the rumour-mill as to whose name was waiting in the wings. The Sheriffs Principal conclude “that each vacancy should be advertised as it arises and that the board  should then recommend for appointment the candidate or candidates whom it regards as best qualified at that time”.

Equally hostile are the Council of the Sheriffs' Association who also believe that a “slate” would “discourage candidates, often among the best qualified, who are interested only in particular vacancies. The importance of securing the best candidate for the office demands that the board consider applications for a vacancy or vacancies as they arise”.

A solution of sorts might be offered by the Temporary Sheriffs' Association, who agree “it is convenient and appropriate to carry out a general recruitment exercise initially to identify a number of ”appointable” candidates. An individual can be advised if he is appointable or not, or not yet appointable. As each vacancy arises, the appointable candidates can be invited to intimate an interest in such a vacancy or vacancies. The slate for appointable candidates will require to be further adjusted from time to time. This can be done by means of the board having a further recruitment exercise, including interviewing any candidates who might now qualify as appointable”.