Judicial appointments need a new benchmark

Published on Thursday 17 April 2008 22:18

IN CENTURIES past Scottish judges ran the risk of being "peebled". This was the practice of the Edinburgh or Glasgow mob to show its disapproval of court judgments by pelting judges with stones. Such extreme criticism is no longer used, but it is fair to say that there is a sector of the public that thinks the bulk of the judiciary is out of touch with modern values and lifestyle.

Judges and sheriffs in Scotland are overwhelmingly male, white and from a middle-class background. It is true that, unlike in England, the Scottish judiciary does not hail from the boarding school and Oxbridge circuit. Instead, they attended urban day schools and mainstream Scottish universities, where they rubbed shoulders with the rest of society. However, many Scottish judges are the sons of solicitors, advocates and sheriffs.

Should we be worried by the narrow social pool from which our judges are appointed? There is an argument in favour of the status quo; that those who act as the guardians of the legal process should be detached from the prejudices, whims and passions of society. However, while detachment is certainly required from the judiciary, surely – as in any other profession – that ability comes best from training and not from inherited social background.

Being too remote from today's complex world can also be a positive disadvantage for a judge, especially in dealing with sexual crimes. Above all, we cannot afford to restrict judicial recruitment to a tiny pool of talent, or the effective dispensation of justice will be undermined.

The Scottish Government now has the power to make judicial appointments, in consultation with the Lord President, the senior judge. Since 2002 these have been based on recommendations from an independent Judicial Appointments Board (JAB) composed of lay members and legal professionals. The JAB is supposed to provide a more professional and transparent approach to selecting judges and sheriffs. To its credit, the board is concerned to ensure more women and ethnic minorities are represented on the bench and has announced a major investigation into the barriers which prevent this happening.

These moves are welcome. However, there have been criticisms of how the Judicial Appointments Board is working, suggesting that under the surface little has changed. Some have argued that the process remains over-reliant on consulting existing judges, obviously a disadvantage for those applying from non-traditional backgrounds.

It is vitally important that the composition of the Scottish bench is widened, both as a means of recruiting new talent and as a way of strengthening public confidence in the judiciary. This may take time, but will be helped by the larger number of women entering the legal profession. In the meantime, the JAB must be more pro-active in encouraging a new generation of applicants to apply for the bench.