Judiciary and Courts (Scotland) Bill. Written submission from Professor Alan Paterson 1

Judiciary and Courts (Scotland) Bill Written submission from Professor Alan Paterson 1 Caveat I have been asked by the Committee to comment as an academic on several issues which have arisen from the evidence presented to the Committee. I should declare, however, that I was until last month a co opted member of the Council of the Law Society, I am now a member of the Scottish Legal Complaints Commission and a member of the Judicial Appointments Board. I should stress, particularly, therefore that I am responding in my capacity as an independent academic and not as a member of any body to which I may belong or have belonged. Introduction: The Constitutional Implications of the Bill The three specific questions put to me were: 1. Is the guarantee of judicial independence provided by section 1 of the Bill compatible with the comparable existing common law offence? Would the common law or statute law take precedence? 2. Is the First Minster s role in relation to the appointment of court of session judges ( and in particular the appointment of the Lord President and Lord Justice Clerk ) compatible with judicial independence? 3. As the judiciary is to be responsible for the administration of the courts, what considerations should be given to the governance and accountability of the judiciary? Each of these requires to be read against the background of the Act and the changing constitutional environment in which we live. The relationship between the Judiciary, the Executive and the Parliament in any modern democracy tends to reflect to a greater or lesser extent Montesquieu s separation powers between them. Both the Lord President and the Cabinet Secretary affirmed in their evidence that the Bill was one of constitutional significance ( cols 566 and 683 ) because it is giving effect to a change in the constitutional relationship between these three arms of government. 2 The existing conventions which comprise the parts of our unwritten constitution which relate to the judiciary have historically tended to emphasise the need to preserve judicial 1 Director of the Centre for Professional Legal Studies, Strathclyde University. The Centre is an independent think tank which covers the legal profession, professional ethics, the judiciary and access to justice. 2 As in England and Wales, the desire of the Scottish Government to more clearly delineate the separation of powers between the Judiciary, the Executive and the Parliament has entailed substantial conversations between the Judiciary and the Executive. See Lord Osborne and Sheriff Dickson at col 583. See also para 2.2 Proposals for a Judiciary (Scotland) Bill. On the lengthy negotiations between the English Judiciary and the Government which produced the concordat enshrined in the Constitutional Reform Act 2005, see A. W. Bradley, Relations between the Executive, Judiciary and Parliament ( Lecture delivered to the Institute of Advanced Legal Studies, 20 th February 2008 ). 1

independence from undue or improper influence including that from the other branches of government. These include provisions on judicial appointment (see below), judicial training, judicial disqualification, judicial salaries, judicial immunity from suit, not interfering with the course of justice and judicial removal. The Bill contains provisions on three of these areas and s.1 relates to judicial independence from undue or improper influence from the Executive. Is the guarantee of judicial independence provided by section 1 of the Bill compatible with the comparable existing common law offence? Would the common law or statute law take precedence? I believe that it is. However it is important again to stress the constitutional significance of this Bill. Traditionally, judicial independence from undue or improper influence from the Executive or from Parliament has been safeguarded by constitutional convention, thus s. 3 of the Constitutional Reform Act 2005 which imposed duties on the Lord Chancellor and others to guarantee the continued independence of the judiciary was specifically seen in England and Wales as reinforcing the constitutional convention of judicial independence from the Executive. The policy memorandum for the Judiciary and Courts (Scotland ) Bill suggests ( p.5) that s. 1 of the Bill, in requiring the First Minster, the Lord Advocate, the Scottish Ministers and certain others to guarantee the continuing independence of the judiciary is safeguarding the rule of law and reinforcing the long established and recognised [constitutional] principle of independence of the judiciary. Indeed the Lord President in his written evidence ( p.2) refers to s.1 as a statutory statement of fundamental constitutional principle. However, as the oral evidence to the Committee has indicated, s.1 (2)(a) with its reference to not influencing particular judicial decisions, also brings it into conjunction with the common law offence of interfering with the course of justice. The latter offence encompasses to a greater or lesser extent a wide range of other offences 3 e.g. perjury, prison breaking, contempt of court, bribery and others. It follows that the common law offence covers a considerably wider range than the narrow ambit of s.1(2)(a) even if we restrict our focus to improper approaches to the judiciary of the variety described by Lord McLuskey in his oral evidence. Since the traditional canons of statutory construction suggest that alteration of the common law is presumed not to be intended unless this is made clear, 4 ( particularly if the common law has deep roots, as the offence of interference with the course of justice undoubtedly does) in my opinion Lord McCluskey was right to state in his oral evidence that s.1(2)(a) ( even if amended as suggested by Sir David Edward ) would not supplant the common law offence of interfering with the course of justice to any significant extent. As several judges observed in their oral evidence, it is unlikely that a breach of section 1 ( and ss.2(a) in particular) could ever be brought to court as opposed to a charge of attempting to interfere with the course of justice. Like others, therefore, I am of the opinion that the primary importance of s.1 is as a symbolic reaffirmation of the constitutional convention of judicial independence. Such conventions influence the culture and practice of executive government and even the wider community. 3 G.Gordon, Criminal Law (3 rd edn ) 2001, Ch 47 4 F.R.Bennion, Statutory Interpretation (4 th edn) ( London: Butterworths, 2002 ) atp.696. 2

Is the First Minster s role in relation to the appointment of court of session judges ( and in particular the appointment of the Lord President and Lord Justice Clerk ) compatible with judicial independence? Yes. It is part of the constitutional checks and balances required in relation to judicial appointment. As with the first question, this question raises issues of constitutional significance. Judicial appointment is one of the areas where the desire of the UK and Scottish Governments for a clearer delineation of the separation of powers has entailed reforms in our constitutional landscape. Particularly in England and Wales, part of the drive for reform came from the increasing role of the senior judiciary in the UK in patrolling the constitutional boundaries through an enhanced jurisdiction of judicial review of administrative acts, the introduction of the European Convention of Human Rights into UK law and the compatibility provisions of the Scotland Act. Since these cases could involve the judiciary ruling on the validity of the acts of the Government this led some to argue for a new system of judicial appointment in which the role of the Government was curtailed, 5 in order to protect judicial independence ( see above). Interestingly, the same developments have been seen by a number of constitutional scholars and commentators 6 as contributing to the introduction of a reformed judicial appointment process as part of the necessary accountability infrastructure in a democracy. On one thing, however, the great majority of commentators in Scotland and England were agreed, the existing method of judicial appointment lacked transparency, 7 demonstrable fairness and commitment to equal opportunities. The independent statutory commissions in England and Wales and in Northern Ireland, the proposed statutory judicial appointments board in Scotland and the proposed panel for appointing the Lord President and the Lord Justice Clerk should be considered in the light of this constitutional background. Their role and composition 8 appear to be intended to provide an aspect of the necessary checks and balances 9 which lie at the heart of the more clearly delineated separation of powers in our evolving constitution. 10 5 Report of the Bar Council working party on judicial appointments and silk ( 3/3/03 ); D. Woodhouse, Judicial Independence and Accountability within the UK s new Constitutional settlement in Canivet et al (eds) Independence, Accountability and the Judiciary ( British Institute of International and Comparative Law, 2006). 6 See e.g the discussions in K. Malleson, The New Judiciary ( Aldershot; Ashgate Press, 1999 ); C.Gearty, The Judicialisation of Democracy paper delivered to the Administrative Bar Association, 7 July 1996; K.Ewing, A Theory of Democratic Adjudication (2000) 38 Alberta LR 708; A. Le Sueur, Developing mechanisms for judicial accountability in the UK 24 (2004) Legal Studies 73). 7 Professor John Bell in his work on Judiciaries within Europe ( Cambridge Studies in International and Comparative Law, Cambridge University Press,2006 ) notes of the English appointment system in 2005 with its reliance on soundings the system has still some way to go before it is as transparent and professional as most of the other countries studied in this book. 8 The most detailed academic discussion of judicial appointment commissions is contained in K. Malleson, Creating a Judicial Appointments Commission: Which Model Works Best? 2004 Public Law 102. 9 Bell in Judiciaries within Europe argues that the presence of non lawyers on bodies which appoint judges is justified because judging is a public office exercising a part of governmental power. 10 Certainly, this is true in England and Wales where the Constitutional Reform Act 2005 enshrined the Concordat between the Judiciary and the Government which was thrashed out over many months. See A. 3

Indeed, in countries such as the UK where the judiciary is not a career judiciary 11 appointed from an early stage in the candidate s legal career, the overwhelming method of judicial appointment is by the Executive. 12 This is a part of the checks and balances required in a constitutional democracy. Whilst Parliament could, in theory, be given the power to appoint the Judiciary, the most widely known example Senate confirmation hearings in the USA is generally not considered to be a model that should be copied in this country. The alternative, that the senior judiciary should be appointed by themselves, has also attracted little support in the UK. Thus Tom Legg ( former Permanent Secretary to the Lord Chancellor s Department ) has argued that since the Judiciary are an arm of government in a democracy then they should not have a predominating influence over judicial appointment: it is no reflection on our judges to say that this would be undesirable. No branch of government should be effectively selfperpetuating. 13 For similar reasons, Legg, Sir Geoffrey Palmer and Baroness Hale have all pointed to the dangers of overloading the judicial membership of appointment commissions. It follows that I am in broad agreement with Sir David Edward on this question. As the Scotland Act provides, it seems perfectly acceptable in a democratic society that the appointment of senior judges should involve the First Minster who is democratically accountable to the Parliament. Judges and Surgeons. It may also be worth adding as a rider to this answer, that the arguments as to the constitutional position of the Judiciary as part of the separation of powers as it exists in the UK, explains why appointing judges is not the same as appointing brain surgeons, as has been suggested once or twice to the Committee. Although both positions involve a high degree of skill, and appointment to both kinds of position has recently been reformed with a view to encouraging equal opportunities and transparency, the position of the Judiciary in a constitutional democracy is quite different from that of surgeons. The Judiciary is an arm of government as the senior judiciary in Scotland and England have accepted. This brings with it issues of institutional accountability 14 as well as a need for an independent form of appointment which contains the necessary checks and balances required by the separation of powers. W. Bradley, Relations between the Executive, Judiciary and Parliament ( Lecture delivered to the Institute of Advanced Legal Studies, 20 th February 2008 ). 11 Countries with career judiciaries, use a wide mixture of methods but more often than not the Executive retains a role in the process. Career judiciaries generally use appraisal and performance indicators as part of judicial selection / promotion mechanisms which have not yet found favour in Scotland. See Bell, Judiciaries within Europe (2005). 12 See Bell, Judiciaries within Europe (2005); K. Malleson, The New Judiciary (1999); K. Malleson & C. Thomas, Judicial Appointments Commissions ( LCD Research series 6/97 Dec 1997 ). 13 Judges for the New Century 2001 Public Law 73. Sir Geoffrey Palmer ( former justice minister and prime minister of New Zealand ) has expressed a similar concern: The tendency to turn the judiciary into a self perpetuating oligarchy ought to be restricted in Palmer Judicial Selection and Accountability in Gray & McClintock (eds) Courts and Policy ( Wellington: Brookers, 1995) at 81. 14 See A. Le Sueur, Developing mechanisms for judicial accountability in the UK 24 (2004) Legal Studies 73 and D. Woodhouse, Judicial Independence and Accountability within the UK s new Constitutional settlement in Canivet et al (eds) Independence, Accountability and the Judiciary ( 2006 ) 4

As the judiciary is to be responsible for the administration of the courts, what considerations should be given to the governance and accountability of the judiciary? Again this question needs to be seen in its constitutional context. There can be little doubt that the function of running the courts in the UK is an aspect of government. As Bradley and Ewing have observed: The court system is part of the framework by which our society is governed. 15 Standard democratic theory would appear to entail that those responsible for that function and the resources associated with it should be accountable to the Parliament. It is not clear why switching the primary responsibility for running the courts from one arm of government to another should alter that. Professor Bell, whose website on comparative methods of judicial appointment was cited in evidence ( col 674 ) has argued elsewhere ( drawing on the same comparative research ) that where the Judiciary in Europe have acquired more say over the running of the courts and the resources associated with this, they have had to develop greater accountability mechanisms, as in Spain and Sweden. 16 As has been noted in the evidence before the Committee, the judges in this area are performing an administrative function and therefore, it might be argued, accountability has less problems associated with it than in other spheres of judicial activity. Given that in terms of the Bill the Judiciary will be more in charge of the running of the courts than their English counterparts it is interesting that composition of the bodies charged with this function in the two countries is as it is. I understand that in England a new Board of 11 members will be chaired by an independent non executive lay chair with three judges, four executive directors, a representative of the Ministry of Justice and two other non executive directors. 17 In Scotland the Bill proposes a body (SCS) chaired by the Lord President with six judicial members, two practising lawyers, a chief executive and three lay members. I can certainly see that it might be argued that the English approach is more balanced than that in the Bill. The evidence sessions before the Committee contained some discussion of the accountability to the Parliament of the SCS. Certainly the accountable officer would be compellable, and would undoubtedly be the individual to appear before parliament in routine situations. In England and Wales it seems to be accepted that it is appropriate for the senior judiciary to appear before parliamentary committees following the recent constitutional changes, to respond to questions relating to matters for which they are responsible ( but not in relation to individual cases ). I would consider the same to hold true in Scotland. I note the discussion as to the compellability of judges to appear before the Parliament and the Lord President in particular. I suspect that the question is to a certain extent academic. Parliament may well in the future invite the Lord President to appear before them in relation to non routine matters to do with the SCS s performance, and he has indicated that he will accept some such invitations ( col. 570). If a situation arose where there was widespread public and parliamentary concern at some aspect of the operation of the courts and SCS I would think it unlikely 15 A.Bradley and K. Ewing, Constitutional and Administrative Law 14 th edn (London: Pearson Longman, 2007) at p.404. 16 Bell, Judiciaries within Europe (2005) at p.349. This argument seems to have been accepted by the English Judiciary who issued a substantial paper, Accountability of the Judiciary in the Autumn of 2007. See Bradley (2008). 17 See Bradley (2008). 5

that the Lord President would refuse a reasonable request to attend in such circumstances. Addendum There is only one other aspect of the Bill on which I would like to comment briefly. That is the reference to the pursuit of diversity in the pool of candidates for selection for judicial posts. This is now a commonly held concern in relation to all public appointments. Appointment on merit is unchallenged, but there is less agreement on the meaning of merit amongst commentators than is sometimes recognised. There were lengthy debates in the House of Lords Committee on the Constitution about the relationship between merit and diversity prior to the passing of the Constitutional reform Act 2005. This Bill contains similar provisions on diversity and certainly the reasons for encouraging diversity in the judiciary and the pool of candidates for judicial selection have been widely canvassed in the literature. 18 They include: 1) The need to ensure that there are no direct or indirect forms of discrimination at work; 2) To enhance democratic legitimacy; 19 3) To enhance the quality of judicial decision making by bringing different perspectives to bear; 20 4) To enable minority judges to serve as a role model for new entrants to the profession. 18 K.Malleson, The New Judiciary ( Aldershot; Ashgate Press, 1999 ); Lady Justice Hale, Equality and the Judiciary [2001] Public Law 489; Bell, Judiciaries within Europe (2005); K. Malleson, Rethinking the merit principle in judicial selection (2006) 33 JLS 126; 19 See Hale (2001) p.502; Report of the Bar Council working party on judicial appointments and silk ( 3/3/03 ) para 2.6; 20 See the quote of Lady Cosgrove in J.Robertson, Female Judge appointed to legal world s inner sanctum The Scotsman 17 th January 2003. See also Chief Justice Beverly McLachlin, Promoting Gender equality in the Judciary Seminar to the Association of Women Barristers, House of Commons, 2 nd July 2003. 6