Lay input fundamental to judicial appointments

Roger Mackenzie put some of the concerns about the operation of the ad hoc judicial appointments board to Justice Minister Jim Wallace

Jim Wallace emerged on The Royal Mile pleased with his afternoon’s work. He’d just brought emergency legislation before the Parliament to close the loophole which threatened to have “cases haemorrhaging out the system” and make clear that issuing an arrest warrant at the intermediate diet automatically cancels the trial date.

It was, said the Justice Minister, an example of devolution at its most effective.

“There was a default found in the law which was a great surprise. But in under two weeks, since the Appeal Court gave its ruling, we have taken legislation through all its parliamentary stages. There is a flexibility in the Parliament to be able to respond promptly and I think that people looking at that will see a Parliament that is business-like.”

What impression does it give of the legal profession that parliamentary time was required to close the loophole? “ I think there are strong feelings that people who have been convicted and other people who might well have been convicted were getting off on a technicality and in terms of the general public perception, that doesn’t appeal to people and that is why we have moved to close the loophole.”

Less straightforward to remedy will be the perception the justice system is chronically underfunded, with the High Court working less efficiently than most people can ever recall. While the Lord Advocate’s announcement of reforms of the Procurator Fiscal Service and Crown Office, including the recruitment of more prosecutors and strengthening of management and administrative support, should go some way to addressing concerns, the court system remains on the brink of chaos.

“We are not complacent about the criminal justice system. I have set up an inquiry under Sheriff Principal McInnes to look at it. It started off as a review of the district courts, but when we looked at it, it became evident that we had to look at the whole of the summary justice system. Lord Bonomy is now looking at the High Court because we do believe that there are efficiencies that can be brought in. We can’t drag our heels, but equally we can’t rush it.  Sheriff Principal McInnes and Lord Bonomy are not afraid of the reform agenda but equally have the experience behind them to have a shrewd idea of what will work.

“We are not complacent in any respect on this but I do not think we should run down the Scottish system of criminal justice. We deal with thousands of cases every year and in terms of the more serious cases, the 110-day rule does mean that these cases are dealt with in Scotland far quicker than almost any other jurisdiction.”

Meanwhile, disquiet in the profession about the operation of the ad hoc judicial appointments board, as outlined by Jamie Gilmour in the previous article, are largely dismissed by the Justice Minister. Many members of the profession feel that behind the rhetoric of openness and transparency, the system has remained shrouded in secrecy. There has also been concern about the quality of lay input; not that those selected aren’t able in their own fields, but they simply aren’t equipped to ask the right questions of judicial candidates.

“I think it is important that there is lay input and it is a question of being seen to open up the system of judicial appointments”, said Jim Wallace.

“It was seen before then to be very much a closed shop of lawyers talking to lawyers and senior lawyers talking to senior lawyers and therefore I think in any reform system it is important that there is a strong lay element. Obviously we have operated the ad hoc system pending the establishment of the full Judicial Appointments Board. I hope we will be able to do that in the relatively near future, but I do not apologise in any way for the lay involvement because it brings to the interviewing process a non-legal dimension.

“First and foremost the overriding riding criterion for appointment is merit. Legal competence is vitally important and in terms of the Judicial Appointments Board that is established, any successful candidate will have to have satisfied the legal members of the Board as to their legal competence to hold judicial office.

“Most people would recognise that the qualities of a good judge or a sheriff go beyond just a competence and knowledge of the law, it does require a lot of personal skills and lawyers alone are not uniquely qualified to assess these skills.”

The specific complaints outlined by Jamie Gilmour, concerning inappropriate questions being put to candidates are “news” to the Justice Minister. Equally he suggests it’s “not unusual” for a senior civil servant like Jim Gallagher to fulfil the sort of dual role about which Jamie Gilmour expresses concern.

“If you take appointments in other departments, given a senior vacancy for example in Highlands and Island Enterprise, I would expect that the head of the enterprise department would sit on that Board. The advice that has been given to me on other appointments within the system, what Ministers get is a proper read-out of the views of the interviewing panel. Sometimes they are ranked and certainly you are told whether they are deemed very appointable or not and whether that is a view of the whole panel and if anyone dissents that would be recorded.”

He also has no concerns about Jim Gallagher sitting on the interview panel for only two of the three candidates for appointments to the High Court.

“Again that is not unusual, in fact it would be more questionable if he had not withdrawn.”

But should he not then have withdrawn form the entire process? “I think it is perfectly proper that if you personally know the applicant you withdraw from the interview of that person and do not offer comment. So I do not think there is anything improper about that. The opposite is the case, it would have been improper had he not withdrawn.”

While he doesn’t think it is necessary to bring primary legislation to establish a full judicial appointments board, “in the longer term it would be better to put it on a statutory footing, but it won’t happen this side of the election”.

“I think it’s absolutely right that the system of judicial appointments has opened up. It is not a question of justice being done, but justice being seen to be done. The old boys network, and it was almost exclusively old boys, is not acceptable in the modern Scotland. That is not a reflection of the judges who emerged from it, who by and large are very skilled and very competent. But I think the public to have confidence, has to see that this is done on a more transparent basis than has been the case up until now, when it has been done behind closed doors.”

Meanwhile, of concern to a wider number of practitioners, the Justice I Committee has reported on civil legal aid, and made a number of recommendations, detailed in an interview in last month’s Journal with Committee Convener Christine Grahame. The report was due for debate just after this Journal went to print. For the Justice Minister, it was disappointing that while their report contained a lot of good material they didn’t prioritise their recommendations.

So does he think we have a system of civil legal aid worthy of the name?

“ I am not denying that it does not have its problems, but we have to remember that 300,000 people get advice and assistance each year,13,500 get full civil legal aid and it does provide access to justice for a number of people. We have amended it in recent times to extend it to some tribunals, such as the employment appeal tribunal. We are not complacent, we do accept that there are changes that can be made.

“ I recognise the importance of legal aid in the legal system and where we can make improvements we will look to do so, recognising that the resources are finite and you will not be able to do everything you want to do.”

Pragmatism is a key quality necessary to thrive in coalition government, and on the issue of the Public Defence Solicitor Office, Jim Wallace displays that virtue – or vice. Having opposed the scheme at its inception, he now seems at least lukewarm in supporting its possible extension.

“ I was uncomfortable when this was proposed but clearly it was a pilot set up and what you do in these circumstances is to look at the outcome of the review of the pilot system. I think a lot has happened since then. The fact is that we have now had it, we have had an independent evaluation that was published last November and that there were some problems associated with it, but that it did have genuine potential to deliver some real benefits.

“ I don’t think the concerns I had have materialised and there has been no suggestion that those who have been represented by the public defenders have been compromised or prejudiced in any way.”

Answering a parliamentary question on the PDSO the following day, Jim Wallace announced: “Having carefully considered the evaluation, I have decided to continue with the Edinburgh pilot for a further period beyond the current end date of October 2003; and to consider launching one or two further pilot projects in other locations. I will bring forward the necessary legislative proposals and make a more detailed statement in due course.”

Also on the Justice 1 Committee’s agenda is the inquiry into the regulation of the legal profession. While he won’t comment on its likely outcome before the committee reports, he did suggest that it was an inquiry “prompted by the experience of constituency members”.

“I think that is something that all of us with interest in the legal system should be aware of and it underlines that no part of the justice system should be complacent. There is nothing wrong with any of us re-examining our practices and procedures and very often it is the things we take for granted. It is useful to see ourselves as others see us.

“It is something I was conscious of, that very often in litigation 50% of those involved thought that the outcome was unjust.

“As a profession by its very nature it does stack up people who think that the system did operate unfairly as far as their own personal case was concerned.

“ There is an image problem and when the public hear that someone got off on a technicality, while those of us who are immersed in it know it is an adversarial system, the public do not readily understand that and will wonder why the Parliament has to pass emergency legislation to block loopholes.

“In so many respects lawyers do give very valued service to clients, often dealing with people at difficult times in their life.”

Does he ever hanker for a return to the profession, nearly 20 years after leaving to become a member at Westminster?

“No, I don’t regret going into Parliament. What I did miss was a number of people I trained with and one of the pleasures I had not really thought of when I decided to come to the Scottish Parliament was being able to make contact again with a lot of old friends and colleagues. That is something I have valued.”