Section 11 — Recommendations of the Board: 25 Sep 2008: Scottish Parliament debates

Alex Fergusson None 3:15, 25 September 2008

Group 2 is on the Judicial Appointments Board for Scotland—recommendations and ranking. Amendment 20, in the name of Bill Aitken, is grouped with amendments 21 and 22.

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Bill Aitken Conservative

When the Judicial Appointments Board was established with a fanfare of trumpets some years ago, it was set up on the basis that the new appointments system would be, among other things, transparent. Indeed, I can recollect the then Minister for Justice comparing and contrasting the new system with that which had existed previously. Many of his comments about the previous arrangements were perfectly apposite. The previous set-up, whereby judicial appointments were made by the Lord Advocate after consultations and takings of soundings, were in effect secret, nepotistic and highly undemocratic. It ensured that judicial appointments were restricted to the few. The former system had everything wrong with it, apart from the fact that it seemed to have worked for a couple of hundred years. However, cynic though I am, I do not suggest any return to the previous approach.

Amendments 20 to 22 seek to highlight a situation in which there is an absence of transparency. As members of the Justice Committee are aware from the committee's stage 2 consideration of the bill, the Judicial Appointments Board interviews candidates, decides whether the candidates are appropriate for selection and, if they are appropriate, places them on a list from which the candidates will be appointed to the judiciary in due course and in no particular order. By contrast, anyone who is interviewed by the civil service, a local authority or a private company with the aim of seeking promotion or inclusion on a list to undertake a higher-graded post is notified of his or her success and given some indication of when they are likely to obtain that post.

Although I accept that there can be difficulties with timing, amendment 20 seeks to obviate the problem that can arise when two or more individuals make successful applications. For example, if there are four vacancies—as, coincidentally, is currently the case in the supreme courts—those who have been interviewed should be told not only whether they have been recommended for appointment but also any ranking that they have been given. That would not breach confidentiality and would give the applicants some indication of when they would be likely to be appointed to the bench.

The existing uncertainty is not only unsatisfactory but unfair on applicants and, in some instances, prevents them from making the usual mid-term plans that we are all required to make in our everyday lives. More important, such uncertainty can sometimes cause real problems. The classic example is where an applicant is a senior counsel who is a planning specialist who has been asked to act for an individual or company in a planning inquiry that, as we all know, could last for several months. Clearly, if the applicant was aware that an early elevation to the bench was likely, by studying the movements within the senate it would be possible for the applicant to anticipate what might happen so that an informed decision could be taken. Basically, amendment 20 would deal with that aspect.

Amendment 21 would simply ensure total independence. Again, I use the example of a situation in which a number of successful applications are made. Without amendment 21, it could be open to ministers to arrange the order of appointments to suit themselves. I am certain that that would not happen with this minister; I have every confidence in Mr MacAskill—under this heading, at any rate. However, amendment 21 would offer an important constitutional safeguard.

Amendment 22 would simply enable applicants to know where they were with regard to any potential appointment.

The principal argument against amendments 20, 21 and 22 would be that circumstances could change. I accept that circumstances could arise whereby the appropriate cabinet secretary or minister might wish to break with the ranking order as laid down by the Judicial Appointments Board. However, I am confident that that would not be done without good reason. The cabinet secretary could make that reason known, and I am sure that that would receive universal support, because we all accept that such circumstances could arise.

The three amendments seek to build on, rather than detract from, the role of the Judicial Appointments Board. Transparency was one of the principal reasons for the foundation of the board. As the bill stands, there is an absence of transparency under several headings. Amendments 20, 21 and 22 seek to improve transparency.

I move amendment 20.

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Alex Fergusson None

We are short of time, so I ask Richard Baker to be brief.

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Richard Baker Labour

We are happy to support Bill Aitken's amendments 20, 21 and 22, which we regard as sensible and beneficial in making the appointments process fair to candidates. It is fair that candidates should know where they are ranked on a list of successful applicants. As Bill Aitken says, that could make a material difference to whether successful applicants who are waiting to take up a position take on other commitments in the meantime.

The amendments seem to me to aid transparency and accountability in the process, which is the drive behind the proposed changes. We therefore support amendments 20, 21 and 22.

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Alex Fergusson None

I ask Robert Brown to be equally brief.

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Robert Brown Liberal Democrat

Again, I have no knowledge of the earlier discussion in committee, but I would like to make a couple of points. There is some merit in Bill Aitken's proposals, and I would like to hear a bit more clarity from the cabinet secretary. I would like him to expand on what he said at stage 2, when he talked about normally following the order of appointments as recommended by the Judicial Appointments Board, unless there were a reason to depart from it. That reason could be relatively incidental—for example, a health reason. Alternatively, we could adopt the approach that we have adopted for many public appointments—I think that it is recommended in our procedures for public appointments—in which ministers have choice and discretion. It is important that we get the cabinet secretary's views on the record.

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Kenny MacAskill Scottish National Party

I sympathise with Bill Aitken's view that an individual who has successfully passed a recruitment round managed by the Judicial Appointments Board should know that they are likely to get a commission. I agree. Not only should they know that they are likely to get a commission, but they should be given a general indication of where they are on the list. That is what happens now, and it will continue to happen once the bill is enacted. However, amendments 20 and 21 seek to give a responsibility to the Judicial Appointments Board that would not be appropriate.

The board's remit is to provide the First Minister with a list of candidates who have been recommended for judicial appointment, and the final decision then rests with Scottish ministers. Ministers retain statutory responsibility for judicial appointments, and it is therefore for ministers, not the board, to inform successful candidates that they have been selected for appointment. If appropriate, Her Majesty would then be invited to appoint them to judicial office.

Amendment 22 cuts across the appointments process and attempts to address an issue that is, and should remain, part of the confidential consideration that the Judicial Appointments Board gives to each candidate before recommending candidates for appointment. That recommendation is then approved by ministers.

Amendment 21 deals with the order of appointments. I assure members that, where a ranked list of candidates is the appropriate vehicle, successful candidates are appointed in the order in which they appear on the list—unless, of course, there is a reason to depart from the order. As Robert Brown suggests, there could be a number of reasons for departing from the order. Bill Aitken's amendment addresses some of those reasons, but there are other situations that he has not covered. A list can have currency for some months. What if, for example, an accusation or complaint were to be made against an individual whose name was on the list? In such circumstances, it would be right and proper for ministers to await the outcome of any investigation before moving either to appoint the individual concerned or to seek to remove their name from the list entirely. To fail to do that would be negligent and could cause problems.

I know that there is a perception in some quarters that, for some reason, ministers might seek to engineer appointments to the detriment of the individual concerned. However, I assure members that that will not happen on my watch, and I do not believe that it will happen on any minister's watch. Nevertheless, in the unlikely event that, in the future, there were to be any cause for concern, it should be noted that the members of the Judicial Appointments Board for Scotland are well aware of the rankings that they have made and are in a position to monitor the appointments as they are made in years to come. I am sure that, if the board members had any reason to suspect me, other ministers or anybody else of behaving in an unacceptable manner, they would soon make their views known.

The bill, as drafted, allows for an appropriate level of flexibility in the appointment process. The circumstances that Bill Aitken and I have touched on are simply exceptional ones that could arise. It would be unhelpful to impose an artificial restraint such as is proposed for eventualities that we hope may never occur but which just might. I therefore invite Bill Aitken to withdraw amendment 20.

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Bill Aitken Conservative 3:30, 25 September 2008

I will deal briefly with Mr MacAskill's point regarding the necessity for change. I fully accept that, were one of the successful applicants to be the subject of an inquiry, ministers would inevitably be required to address the situation. I would fully support any cabinet secretary who went down that route. However, as I said, the bill is designed to build on the transparency of the system and changes are necessary. I am certain that Mr MacAskill would never do anything underhand on his watch. Nevertheless, my amendments would safeguard the position for the future. I intend to press amendment 20.

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Alex Fergusson None

The question is, that amendment 20 be agreed to. Are we agreed?

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Members:

No.

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Alex Fergusson None

There will be a division. As it is the first division of the afternoon, I will suspend the meeting for five minutes. The division will take us beyond the time limit for groups 1 to 4. I therefore exercise my power under rule 9.8.4A of the standing orders to extend the time limit to allow members with a right to speak on groups 3 and 4 to do so.