Our constitution, July 2012: Judicial independence

“I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill-will.”

“Judicial independence: judges appointed by independent commission having legal and lay representatives; judges removable only for misconduct etc”

From the Judiciary of Scotland website:

In Scotland, the principle was emphasised as long ago as 1599 when the Lord President of the Court of Session declared that the judges were independent of the king, “sworn to do justice according to our conscience”.

Judicial independence is protected in several ways:

  • freedom from interference, influence or pressure from the State through separation from government and parliament, which may be involved in disputes heard by the judge;
  • restrictions on removal from office – for instance, a full-time, salaried judge can only be removed before retiring at 70 if unfit for office because of inability, neglect of duty or misbehaviour; and
  • Immunity from being sued or prosecuted for work carried out as a judge.

This is another area where Scotland’s Constitution would appear to simply confirm the status quo: we have this already, it’s clearly a good thing, right?

Not so fast. In Scotland, in principle at least, full-time salaried judges aren’t appointed by an independent commission, but by the Queen on recommendation from the First Minister.

In practice, what happens is that the Judicial Appointments Board for Scotland (JABS) does make all recommendations.

The Board makes recommendation for appointment and may assemble a pool of suitable applicants. Judges can then be appointed from this pool as vacancies arise.

When a new judge is required, following a request from the Scottish Ministers, JABS makes recommendation to the First Minister. The First Minister is required to consult the Lord President [Head of the Scottish Judiciary] on any recommendation for judicial appointment before making his/her recommendation to the Queen.

And judges of lower rank (part-time sheriffs, stipendiary magistrates, justices of the peace) are appointed either by independent commission or by Scottish Ministers on advice from an independent commission. THe introduction of the Crown into judicial appointments means that the constitutional question of Head of State and the powers of a Prime Minister ties into the question of an independent judiciary: not only who are the judges, but – who appoints the judges?

While in principle JABS

is committed to the principle of appointment solely on merit. It encourages and welcomes applications from the widest possible range of applicants regardless of gender, ethnic and social background, marital status, sexual orientation, political affiliation, religion or disability.

In practice, public boards in Scotland tend to be staffed primarily by white male upper/upper-middle class able-bodied married men: women, ethnic minorities of any gender, openly lesbian, gay, bisexual or transgendered people, disabled people, working class people or financially-struggling squeezed-middle class people – tend not to get much of a look in. (To be fair, sectarian appointments have long been recognised as a problem to be challenged, and political affilitation tends to come in under “jobs for the boys”.)

The question of whether to appoint to public boards by positive discrimination, to have regard to the diversity of Scotland and appoint for diversity rather than the obvious candidate (see orchestras), is a Constitutional question in itself, to be dealt with later in the month.

But if you look down the roll of the Senators of the College of Justice, who sit in the Court of Session, you see that this is not a diverse group of people. You might argue that necessarily a person will not be appointed to the Senate without decades of experience and that therefore there will be lag time in the College of Justice catching up.

But the question of who is on the Board that recommends candidates to the head of state for appointment, is something that can be considered right now: such boards ought to have both legal and lay members, to consider other questions about a potential judge beyond the necessary legal competence.

For

The right to participation is meaningless unless a group has the ability and the resources to exercise it. In many countries minorities have been economically or socially disadvantaged. Unless special programmes, such as educational facilities, access to the public service, or sometimes special financial loans, are established to enable them to catch up with other communities, the disparities between them and others increase. Participation assumes security and self-confidence. The importance of minimum levels of education and other social and economic facilities to the exercise of the right to participate is increasingly recognized in studies on poverty and social development (see the Copenhagen Social Development Declaration, 1995). From Public Participation and Minorities, by Yash Ghai, minority rights group international

Whatever the principles of judicial ethics in an independent or a devolved Scotland, both the method and standards of appointing judges and the composition and method of appointing panels to consider candidates for the judiciary, is a matter for the Constitutional Convention to consider.

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