Strasbourg, 12 February 2001

CCJE (2001) 21

Consultative Council of European Judges (CCJE)

Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by the United Kingdom

(A) ENGLAND AND WALES

I. THE INDEPENDENCE OF JUDGES

1. Is the independence of judges guaranteed by the Constitution or by legislation?

The United Kingdom has no written Constitution1. The independence of judges of England and Wales is not a topic dealt with specifically in legislation relating to courts and judges. Some provisions of such legislation are however relevant (see below).

The principle that any judge must be and is free to reach a decision in each case without outside influence or pressure, even from other judges, is well established. It can be a contempt of court for an outside person or body to seek to influence or put pressure on a judge to reach a particular decision. In Parliament the convention exists that judges’ conduct will not be debated there (short of a motion for removal), although Members of Parliament may present reasoned arguments for suggesting that particular decisions have been mistaken. There is a further unwritten convention that members of the legislature and the executive should avoid direct criticism of judicial decisions. Judges enjoy personal immunity from suit in respect of their decisions2. Any judge’s freedom of decision must of course be exercised within the framework set by statute law, prior case-law (a superior court’s decision may under the doctrine of precedent bind an inferior judge on an identical point of law) and his or her own assessment of the facts and law. Judges also retain overall control over the listing of cases before them – although the administration has in recent years played a greater role in day-by-day listing and this has led to fears of indirect pressure arising from administrative desire to speed up the throughput of cases. Judges do not control court budgets, but the system relies on cooperation between senior, presiding or resident judges and the administration to ensure that sufficient facilities and administrative and judicial manpower exists to deal with the business of each court properly and expeditiously – see below.

If by “the independence of judges” one thinks of a complete separation of the judiciary from other arms of the state, i.e. the executive and legislature, then the legislation establishing court and judges in England and Wales indicates some contrary and particularly British features. “Law Lords” who sit in the highest courts of the land, the Judicial Committees of the House of Lords and of the Privy Council, are members of the House of Lords (the upper of the two Houses of Parliament) in its legislative sense. So too in recent years the Lord Chief Justice (the senior sitting judge in the Supreme Court) and the Master of the Rolls (head of the civil side of the Court of Appeal). The Lord Chancellor is a member of the Cabinet and Speaker of the upper House of Parliament), but from time to time (though recently not frequently) still chairs one or other of the two Judicial Committees. He, rather than the Lord Chief Justice, is also regarded as head of the judiciary. He is referred to in the Supreme Court Act 1981 (establishing the Supreme Court, consisting of the High Court and Court of Appeal of England and Wales) as “president” of the Supreme Court, although he now never sits in either the High Court or the Court of Appeal. There has been some discussion in recent years whether these constitutional features can or should continue, particularly after the incorporation into domestic law of the European Convention on Human Rights3. Both the Law Lords and the Lord Chancellor keep separate their judicial from their other functions, and aim to avoid conflicts of interest; their legislative and political involvement has traditionally been viewed as a positive point, giving the judiciary an influence in those areas which it would not otherwise have.

Judges are also not infrequently used by government to undertake public inquiries and quasi-judicial activities. This is precisely because of their independence. Examples of
inquiries range from inquiries into the causes of marine or railway disasters, into affairs with possible security implications, into the location of a new airport4, into the BSE crisis5 and into the (politically highly sensitive) events of “Bloody Sunday” in Northern Ireland6. A recent striking example of legislation requiring the appointment of a senior judge and other judges to scrutinise the work of government ministers, the police and intelligence services is the Regulation of Investigatory Powers Act 2000: the Prime Minister is required to appoint “a Commissioner to be known as the Interception of Communications Commissioner” and an “Intelligence Services Commissioner”, each of whom must hold or have held “high judicial office” (i.e. in England, office as a judge of the Supreme Court), as well as Assistant Surveillance Commissioners, who must hold or have held judicial office at the level of the Circuit bench7.

The English and Welsh system allows for, and to an extent relies upon, the appointment by the Lord Chancellor of practitioners to act as part-time judges, sitting either (a) as Recorders for terms of five years to sit in the Crown or County Court for between 20 and normally 30 days each year; and (b) as deputy High Court judges. The continuation or renewal of such appointments rests with the Lord Chancellor8.

The English and Welsh system has in recent years also made use of the ad hoc services of retired judges9. They may sit until the age of 75 as and when requested by the Lord Chancellor. Judicial salaries are determined by the Lord Chancellor with the consent of the Chancellor of the Exchequer, and without recourse to Parliament, and are further charged on the Consolidated Fund10. Rates of pay are however recommended by a body independent of Government, the Top Salaries Review Board. They are in practice increased annually, at least in line with inflation. They may not be lowered without an Act of Parliament.

2. What institutional safeguards are there with regard to the independence of judges?

Full-time judges are in the UK appointed at a mature age from the ranks of experienced and successful independent practitioners (mainly barristers, but also including solicitors), who have usually been accustomed to acting both for and against government and other interests. They retain, and it may be said further develop, their independence of spirit when they go on the bench. In addition, the number of judges in the UK is small. Although the system has a hierarchical aspect (with the split between the House of Lords/Privy Council, the Supreme Court, the Circuit bench and District judges), at each level and to an increasing extent overall, the judiciary would strongly resist any attempts to interfere with its independence in decision-making. At present different levels of the judiciary have different organisations or bodies representing them, but the Judges Council (representing the Supreme Court judiciary) has recently invited representatives of the Councils of Circuit Judges and District Judges to attend its meetings, which should reinforce its ability to speak for the bulk of the judiciary. The Judicial Studies Board, headed by judges and in receipt of its own budget from the Lord Chancellor’s Department, has also proved an important focal point for meetings and discussions of all levels of the judiciary.

3. Is the irremovability of judges recognised?

Yes, with some variation in extent. A Law Lord, once appointed, could (presumably) only be removed if at all by the (unthinkable) course of impeachment before the House of Lords. Since 1701, and as enshrined now in the Supreme Court Act 1981 s.11(3), any judge of the Supreme Court “shall hold that office during good behaviour, subject to a power of removal by Her Majesty on an address presented to her by both Houses of Parliament”11. S.11(8) provides for cases where a Supreme Court judge becomes incapacitated without being aware of it12. Circuit and other lower level judges are in theory at least more easily removable. Under the Courts Act 1971 s.17(4), the Lord Chancellor can dismiss them on grounds of “incapacity and misbehaviour”13.

4. Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided for by law, by institutions other than the courts of appeal or cassation?

The answer is no. This is also confirmed in the human rights context by s.9(1) of the Human Rights Act 1998, providing that a person claiming to have been the victim of an unlawful judicial act may only bring proceedings by appeal, by application or in Scotland petition for judicial review or in such other forum as may be prescribed by rules.
Two particular situations may, however, be mentioned:
(a) First, following the imposition on an adult of the (mandatory) life sentence for murder, the practice is for the sentencing judge and the Lord Chief Justice to make a recommendation to the Home Secretary as to the minimum number of years that the convicted person should, having regard to the interests of retribution and general deterrence, actually spend in prison before being considered for release. The Home Secretary is not bound by that recommendation (although his decision may in an appropriate case itself be reviewed by judicial review) and he may increase (and in some recent cases) has increased this minimum14.

(b) To cater for the possibility of miscarriages of justice in criminal cases, the Criminal Cases Review Commission has since 1995 had power to investigate criminal cases in which an appeal, or application for leave to appeal, has been refused and to refer them back to the Court of Appeal if it considers that there is a real possibility that the conviction or sentence would not be upheld on account of some argument, evidence or (in the case of sentence) information not previously raised. 5. Can a case be withdrawn from a judge? If so,

        i. on what grounds?
        ii. by which authority?

The answer is: certainly not while a judge is involved in hearing and deciding a particular case (unless on appeal or judicial review a superior court concludes that there exists a conflict of interest or appearance of bias15).

The question probably postulates a system under which each judge has responsibility for a list or docket of particular cases assigned to him or her from their outset or an early stage16. With some exceptions this is not the English and Welsh system. Cases are handled by different judges at different stages. Their listing before any particular judge at any particular stage is dealt with on a day-by-day basis by the administrative listing office and in circumstances of difficulty or doubt by the senior, presiding or resident judge of the relevant court. The element of discretion enables cases involving particular specialisms (including languages) to be put before judges with particular experience or qualifications. In some systems this could be dangerous. In the English and Welsh system it is regarded as an advantage17.

II. THE APPOINTMENT OF JUDGES AND THEIR CAREERS

1. What qualifications are required and what conditions must be met in order to become a judge?

and

2. Are judges recruited by competitive examination, on the basis of a professional examination or on the basis of their qualifications?

On the basis of their qualifications - by experience and skill. Thus (starting from the lowest level) Recorders (part-time judges) require 10 years right of audience in the Crown or County Court18. District Judges and Stipendiary Magistrates as well as Masters and Registrars of the Supreme Court require a 7 year qualification19. Circuit Judges require the like experience or certain other judicial experience20; and the Lord Chancellor normally only considers those who have sat as a Recorder for at least 2 years and are aged between 45 and 60.

High Court judges require 10 years right of audience in the High Court or to have been a Circuit Judge for at least two years21. The Lord Chancellor’s power to appoint deputy High Court judges depends on the same qualification22. In each case appointments are in practice made from the ranks of practitioners of 20 to 30 years standing with the rank of Queen’s Counsel. Court of Appeal judges require to have 10 years right of audience in the High Court or to be a High Court judge23. In practice, they are appointed from the ranks of High Court judges. Law Lords require to be a judge of, or qualified for appointment to, the Court of Appeal24. In practice, Law Lords are appointed from the ranks of the Court of Appeal. 3. What level of studies is required to become a judge? Not applicable – see the response to question II.2. 4. Is previous professional experience required? Yes – see the response to question II.2. 5. Are there any age requirements? Yes – see the response to question II.2. 6. Are judges elected? No. 7. Or are they appointed? Appointed. Appointments to posts above the High Court are by invitation only. Applications are invited for appointment to the High Court, although the Lord Chancellor reserves the right to appoint those who have not applied. Applications are invited for all other offices. Appointment is strictly on merit – for the criteria, see answer II.12 below.

8. Or are they selected in another way?

Not applicable.

9. Which authority is responsible for recruiting judges?

The Lord Chancellor in the case of judges up to the level of High Court judges. The Queen on the recommendation of the Prime Minister, who receives advice from the Lord Chancellor, in the case of (a) judges of the Court of Appeal, (b) Heads of the Divisions of the High Court (that is the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor, who heads the Chancery Division) and (c) the Law Lords. In each case the Lord Chancellor consults with other senior members of the judiciary.

10. Does any authority independent of the government and the administration take part in the selection or promotion process?

- if so, specify the composition and role of this body?

The Lord Chancellor is in the process of establishing a Commission for Judicial Appointments, with a role in relation to all professional judicial appointments made or recommended by him, including renewals or appointments (and including certain non-legal appointments such as to medical or lay tribunals).
The Commission will, amongst other functions, investigate complaints relating to the application of the appointments system, consider comments made about the processes by outsiders or points which the Lord Chancellor himself wishes to refer, audit the system’s processes on a sample basis e.g. by attending interviews and discussions, attend the Lord Chancellor’s succession planning meetings for High Court judges and publish an annual report.
As is apparent, its role will not be to take part in the selection or promotion process, but to investigate complaints, audit, review and report in relation to it25.

11. How and by whom are judges promoted? See the response to question II.9 above. 12. What are the criteria for promoting judges? Are they objectively defined? This question is, as such, perhaps less important in the United Kingdom than in systems where being a judge is a life-time’s career. In the United Kingdom, most full-time judges, once appointed, are never promoted. The most common “promotion” consists of the appointment of part-time Recorders to a full-time judicial office. Promotion is, like appointment, strictly on merit; it takes place regardless of gender, ethnic origin, marital status, sexual orientation, political affiliation26, religion or disability (except where the disability prevents fulfilment of the requirements of the office); and it takes place after extensive consultation and soundings among other judges and practitioners by the relevant division of the Lord Chancellor’s Department responsible for judicial appointments. The Lord Chancellor has published the criteria by which he decides upon appointments to judicial office, as being: legal knowledge and experience; intellectual and analytical ability; sound judgment; decisiveness; communication skills and authority; integrity; fairness; understanding of people; sound temperament and maturity; courtesy and humanity and commitment to public service. Promotions within the full-time judiciary do occur, although they are not the main way in which vacancies are filled, except at the level of the Court of Appeal and House of Lords. Thus, a District Judge may be promoted to Circuit Judge, Circuit Judge to the High Court, and, as pointed out, the normal way in which Court of Appeal judges and Law Lords are appointed is by promotion from, respectively, the High Court and the Court of Appeal.

13. In what cases can a judge be removed from office?

See the response to question I.3.

14. Do you wish to make any comments or mention any practical difficulties with regard to the independence and appointment of judges in your country?

No, save to add that the recent incorporation into the domestic laws of the United Kingdom of the provisions of the European Convention on Human Rights has opened the possibility of challenges in the domestic courts to some features of the English and Welsh arrangements, including those described in the responses to questions I.1, 4(b) and 10 above.

III. THE FUNDING OF THE COURTS

1. How are the courts’ activities funded?

Out of the Lord Chancellor’s budget. This is set by the Treasury, and the Lord Chancellor’s Department has necessarily to compete for funds with other departments of state, such as the education and health services and the armed forces. The Lord Chancellor’s Department has established an executive agency, the Court Service, to operate the courts, and a large part of the Lord Chancellor’s Department’s budget is assigned to this agency. Continual increases in the costs of the administration of justice (including the provision of legal aid system, at least until recent reforms) and Treasury constraints on public expenditure during the last two decades have on occasions led to judicial concern about resources made available. The judiciary’s role is confined to seeking to influence the Department and the Court Service in private discussion and sometimes by public pronouncement. It has no formal role or control.

2. Give a brief description of the rules governing the setting of the budget for the judicial system and the courts.

See the response to question III.1.

3. Do judges have any say whatsoever in decisions concerning funding or in managing the budget?

Yes, but only on a consultative basis – see the response to question III.1.

4. Do judges have adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that they can act efficiently and without undue delay?

Not yet. The Lord Chancellor’s Department has in recent years implemented a programme providing judges on an individual basis with word-processing and computer equipment and controlled access to legally oriented internet sites, as well as a limited intra-net linking judges with each other But neither judges’ clerks nor the court service generally have matching equipment.
Further, facilities are not in place to enable effective communications between judges and the administration or court users by either e-mail or video-conferencing. Nor are facilities in place, therefore, to enable judges to understand and follow the progress of cases before their courts or to control them electronically, e.g. with a view to progressing them without delay.
However, the Lord Chancellor’s Department has extensive plans in the area of IT and e-commerce within the framework of its programme for Modernising Government and its “Vision of the Civil Justice System in the Information Age”, and significant further funding has been promised in this particular area. These plans remain for fulfilment in the next years.

5. Do judges encounter other material difficulties, which prevent them from acting efficiently?

Sometimes. One current concern, admittedly confined to the sphere of major business litigation, is, for example, that the physical facilities in the form of buildings and court rooms no longer match the needs or the expectations of those either resident or choosing to litigate in London. The Lord Chancellor’s Department has instituted a study to examine the justification for a new business court. But its terms of reference tend to assume that such a facility must pay for itself (possibly by increased fees for heavy business litigation), rather than to enquire what a modern system of justice requires in the interests of those resident and coming here. See also the response to question III.7 below.

6. Are appropriate measures taken to assign non-judicial tasks to other persons?

Yes, in general terms, though a degree of legally qualified assistance would probably be welcome to many United Kingdom judges, e.g. to enable papers to be progressed and arranged.

7. General comments on the funding of the courts

Some judges have been concerned in recent years that the funding of the administration of justice is being approached as if justice were a commodity, rather than an essential function of the state and a right of residents in that state (cf. article 6 of the Convention on Human Rights). It must, inevitably, be a political decision what level of support and service any country can afford. But justice cannot and should not be expected to pay for itself or to justify increased expenditure upon it on purely commercial grounds.

(B) NORTHERN IRELAND

1. Constitutional arrangements in Northern Ireland differ at present only in detail, for example in relation to the qualifications for judicial appointment, the life sentence review procedure, the dramatis personae (e.g. the precise judicial offices) and the extent to which deputies (in England Recorders) are used. There is also more day-by-day control of listing in the Northern Irish Supreme Court, as is feasible with a small judiciary.

2. A recent review of the criminal justice system (in the context of the Good Friday Peace Agreement) has however made far-reaching recommendations, including recommendations relating to the procedure for judicial appointments, which would introduce an appointments commission to perform all but the final stages of the process. But the acceptance and implementation of such recommendations would depend upon the devolution to the Northern Ireland Assembly of justice functions under the Northern Ireland Act 1998, which still lies some way in the future.

3. The provision of Information Technology facilities to enable courts and judges to work efficiently is one area in which Northern Ireland may be regarded as more advanced than England and Wales27. A judicial network linking all judges and the Court Service was put in place in the summer of 2000, and gives access not merely to information and material on the judicial intranet, but also to the internet. Half a dozen “technology courts” are being developed, equipped with video-conferencing, document management and presentation equipment, to facilitate the electronic submission of documents to the court as well as improved case management information for judges.

(C) SCOTLAND

1 THE INDEPENDENCE OF JUDGES

1. Is the independence of judges guaranteed by the Constitution or by legislation?

The Court of Session (the Supreme Court in Scotland in civil matters) was established in 1532. The origins of Scotland’s supreme criminal court (the High Court of Justiciary) are obscure but arrangements were regularised in 1672 when by legislation provision was made for some of the judges of the Court of Session also to sit as judges of the High Court of Justiciary (now all such judges may so sit). The continued separateness of the Scottish legal system was provided for on the Union of the Parliaments of Scotland and of England in 1707. Although many aspects of Scots law are by the Scotland Act 1998 now devolved to the Scottish Parliament, the continued existence of the High Court of Justiciary and of the Court of Session is not so devolved (Scotland Act 1998, schedule 5 para. 1(d) and (e)).

The devolution settlement does not make express provision for the independence of judges. However, in so far as irremovability of judges bears on their independence, see response 1.3. As to control of salaries, see response III.2.

The lower courts in Scotland are the Sheriff Court (which deals with both civil and criminal matters) and the District Court (which deals only with minor criminal matters).

Judges in Scotland (other than District Court judges) enjoy personal immunity from suit in respect of what they do or say judicially. District Court judges can be successfully sued only in very limited circumstances.

It is a criminal offence to slander or threaten a judge with reference to his or her judicial conduct. The extent (if at all) to which judges otherwise have protection from adverse comment by politicians, members of the public or the press is uncertain.

Judges have, in general, little control over whether particular cases are brought before them individually. Much of the day to day allocation of judicial business is in the hands of administrative officials. However, some, mainly senior, judges have a measure of control over which cases are to be heard by them personally or by other judges, including power to determine which particular judge or judges should hear a particular case or series of cases.

Judges do not control court budgets. See response to section III. The contrast in this respect between Scotland and Canada was recently discussed in Clancy v Caird 2000 S.L.T. 546.

The English features of “cross-over” between judicial, executive and legislative roles do not, in general, apply in Scotland, except that the “Law Lords” referred to in the response relative to England and Wales may hear appeals in the House of Lords from the Court of Session and appeals in the Judicial Committee of the Privy Council on “devolution issues” from the Court of Session and the High Court of Justiciary.

Scottish judges have on occasion been used to undertake public inquiries.

The Scottish legal system relies to a material extent on part-time judges. In the Supreme Courts these are of two categories - (1) retired judges and (2) “temporary” judges, the latter being drawn from the ranks of practitioners or of serving or retired sheriffs. The extent to which such part-time judges are used is to a degree controlled by the Lord President (Scotland’s senior judge) but administrative pressure results in what is, arguably, an excessive use of such resources.

After a successful challenge on Human Rights grounds to the previous office of “temporary sheriff”, legislation has recently been passed by the Scottish Parliament under which duly qualified persons can be appointed as “part-time” sheriffs. That legislation makes improved provision for the security of tenure of persons so appointed.

2. What institutional safeguards are there with regard to the independence of judges?

Full-time judges in Scotland, as in England and Wales, are appointed at a mature age almost exclusively from the ranks of experienced and successful independent practitioners. All the full-time judges of the Supreme Courts have, to date, been persons who have qualified and practised as advocates; in by far the largest number of cases they have been at the time of their appointments senior members of the practising Bar. In three cases judges have been promoted from the Sheriff Court Bench, having been successful practising advocates before appointment as sheriff. In all cases they have been accustomed to act both for and against Government and other interests. They retain an independence of spirit. The same applies, though arguably to a less marked degree, in the case of sheriffs. These are appointed from the ranks of the practising advocates, solicitors or solicitor-advocates. Almost all have been in private practice, though occasionally solicitors formerly in Government service or holding an academic post have been appointed. As in England and Wales, it is likely that the Scottish judiciary would strongly resist any attempts to interfere with its independence in decision making. A Judicial Studies Board has also recently been appointed for Scotland and is actively discharging its functions.

3. Is the irremovability of judges recognised?

The Scotland Act 1998 makes statutory provision (section 95(6) - (1 1)) for the procedure to be followed before a judge of the Court of Session can be removed. The procedure requires that a tribunal, chaired by a person who holds or has held very high judicial office, investigates and reports on whether the judge is unfit for office by reason of inability, neglect of duty or misbehaviour. Only on a report that the person in question is so unfit may further procedure (including a resolution of the Scottish Parliament) be carried through for his or her removal. There has been no instance to date of removal of a judge of the Court of Session (or of the High Court of Justiciary) under the 1998 Act or, so far as known, at any earlier time.

Judges of the Sheriff Court may be removed from office by the Secretary of State for Scotland (Sheriff Courts (Scotland) Act 1971 section 12) but only following an investigation and joint report by Scotland’s two most senior judges (the Lord President and the Lord Justice Clerk) that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour. One person has in recent years been so removed. The judges of the Sheriff Court are sheriffs and sheriff principals, the latter holding a senior post, including certain appellate and administrative responsibilities. References hereafter to sheriffs should be taken to include sheriff principals.

The provision in respect of removal of judges of the Sheriff Court also applies to stipendiary (salaried) judges of the District Court. Provision has recently been made by the Scottish Parliament under which a judge of the District Court having judicial functions may not be removed from office except after an investigation by a tribunal having a majority of legally qualified persons. Lay (non-professional) judges of the District Court are liable to summary removal.

4. Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided for by law, by institutions other than the courts of appeal or cessation?

No. Government bodies are, as others, bound by judicial decisions.

It has not hitherto been the general practice in Scotland for judges, on imposing (mandatory) life sentence for murder, to make a recommendation as to the minimum period of years which should be served. They have, however, a power on sentencing a person so convicted to make a recommendation as to the minimum period which should elapse before that person is released on licence. This power tends to be exercised only in the most serious cases. However, the Scottish Ministers have recently published a Bill which, if enacted by the Scottish Parliament, would require judges, in all cases where a sentence of life imprisonment is or has been imposed, to state what period should be served in respect of the retributive and generally deterrent aspects of the sentence.

A Scottish Criminal Cases Review Commission has recently been established to investigate and to refer to the High Court of Justiciary (sitting as a court of appeal) cases of possible miscarriages of justice. This replaces a power previously enjoyed by Government to make a reference for such a purpose.

5. Can a case be withdrawn from a judge? If so,

    (i) on what grounds?
    (ii) by which authority?

As indicated above (response to question 1.1) the allocation of particular cases to judges is largely dealt with administratively. There is, in general, no list or docket system. (In commercial cases in the Court of Session judges tend to have their own “lists” but such lists are settled by the full-time Commercial judge). Once a case is allocated and the judge sits to hear it, there will ordinarily be no question of it being withdrawn from him. However, on rare occasions, the judge may himself take the view that he is for some specific reason disqualified from hearing the case. Occasionally, that decision may be taken by other judges (Hoekstra v HMA (No.2) 2000 S.C.C.R. 369).

II THE APPOINTMENT OF JUDGES AND THEIR CAREERS

1. What qualifications are required and what conditions must be met in order to become a judge?

    and

2. Are judges recruited by competitive examination, on the basis of a professional examination or on the basis of their qualifications?

On the basis of their qualifications - by experience and skill. Starting from the lowest level -

    (1) District Courts: a stipendiary (salaried) judge must on appointment be an advocate or solicitor who has been legally qualified for at least five years.

    (2) Sheriff Courts: a sheriff must on appointment be an advocate or solicitor who has been legally qualified for ten years.

    (3) The Court of Session (and the High Court of Justiciary): Advocates must have on appointment been legally qualified for at least five years (in practice appointments are usually of Queen’s Counsel who have been in practice for between twenty and thirty years). Sheriffs who have held office for at least five years and solicitors who have had a right of audience in the supreme courts for at least five years are also eligible. The Court of Session is a single collegiate court. It is, however, divided into two parts - (1) the Outer House (which deals largely with cases at first instance) and (2) the Inner House (which deals largely with cases on appeal). Promotion of judges from the Outer House to the Inner House is in the joint hands of the Lord President and the Lord Justice Clerk.

    (4) The House of Lords: the Law Lords usually include two judges promoted from the Court of Session Bench. On appointment a Law Lord must have held high judicial office for at least two years or have been in practice as an advocate or solicitor-advocate for at least fifteen years.

3. What level of studies is required to become a judge?

Not applicable. See response to question 11.2.

4. Is previous professional experience required?

Yes. See response to question 11.2.

5. Are there any age requirements?

Not specifically, but see response to question 11.2.

6. Are judges elected?

No.

7. Or are they appointed?

Appointed.

Appointments of District Court judges are made by the Scottish Ministers. Sheriffs are appointed by the First Minister. Appointments of judges to the Court of Session are presently made by the Queen on the recommendation of the First Minister (the head of the Scottish Executive) after consultation with others, including the Lord President. In the case of the most senior posts (Lord President and Lord Justice Clerk) the recommendation is by the Prime Minister (of the United Kingdom). The Scottish Executive has recently indicated an intention to review the procedures for judicial appointments in Scotland. No clear proposals for reform have yet emerged.

8. Or are they selected in another way?

Not applicable.

9. Which authority is responsible for recruiting judges?

The Scottish Executive Justice Department has administrative responsibility for the recruitment of sheriffs and part-time sheriffs. Vacancies for those posts are advertised. Vacancies for posts as judges of the Court of Session are not at present advertised. Individuals considered suitable for appointment are approached personally by the Lord Advocate (the senior law officer of the Scottish Executive).

10. Does any authority independent of the Government and the administration take part in the selection or promotion process? If so, specify the composition and role of this body?

As indicated above, the Lord President is consulted in relation to the appointment of judges of the Court of Session. The Lord president and the Lord Justice Clerk are jointly responsible for the promotion of judges from the Outer House to the Inner House of the Court of Session. “Promotion” of judges from the Sheriff Court to the Court of Session proceeds in the same way as appointment otherwise of judges of the latter court.

The Lord President, the sheriff principals and the Dean of the Faculty of Advocates (the head of the practising Bar) are consulted in relation to the appointment and transfer of sheriffs. The sheriff principals are consulted in relation to the appointment to the appointment of part-time sheriffs.

11. How and by whom are judges promoted?

See response to question II.1.0

12. What are the criteria for promoting judges? Are they objectively defined?

No criteria for the promotion of judges have been published. The Scottish Executive, in its recently published consultation document relative to judicial appointments, has suggested that, in addition to knowledge of the law, a successful candidate for any judicial appointment would be expected to have intellectual and analytical ability, sound judgement, decisiveness, communication and listening skills and authority and case management skills. It has also been indicated that such a candidate would be expected to have the personal qualities of integrity and independence, fairness and impartiality, understanding of people and society, maturity and sound temperament, courtesy and commitment, conscientiousness and diligence. Presumably these criteria, appropriately applied having regard to the demands of the particular promoted post, are also relevant to promotion. The basic principle for original appointment (and implicitly also for promotion) has been stated to be “on merit without regard to ethnic origin, gender, marital status, sexual orientation, political affiliation, religion or disability, except where the disability prevents the fulfilment of the physical requirements of office.

13. In what cases can a judge be removed from office?

See the response to question 1.3.

14. Do you wish to make any comments or mention any practical difficulties with regard to the independence and appointment of judges in your country?

The whole process of the appointment of judges in Scotland is presently under consideration. The judges of the Court of Session and the Sheriff’s Association, among others, have submitted responses to the Scottish Executive’s consultation document. The outcome of this process, including any administrative or legislative changes, will require careful evaluation in relation to any implications for the independence of judges.

III THE FUNDING OF THE COURTS

1. How are the courts’ activities funded?

The Scottish courts are funded out of monies determined by the Scottish Parliament.

2. Give a brief description of the rules governing the setting of the budget for the judicial system and the courts.

A Budget Act is passed each year by the Scottish Parliament. This determines the maximum sums which may be expended on various functions. Provision is made in the Parliament for a maximum sum which may be expended through the Scottish Executive Justice Department on, among other things, the funding of the courts. The determination of judicial remuneration is, however, reserved to the United Kingdom Government (Scotland Act, schedule 5, section LI). In the case of judges of the Court of Session, while salary levels are set by the executive, an independent board periodically reviews those levels and makes recommendations.

3. Do judges have any say whatsoever in decisions concerning funding or of managing the budget?

Not directly.

The Lord President and the sheriff principals are advised of the broad levels of the financial provision being made. They make representations as to funding. Exceptionally, special provision may be made, as in the recent appointment of additional judges in the Court of Session to meet the circumstance that four existing judges were engaged in the trial in Holland arising from the Lockerbie Disaster and the Lord Justice Clerk was holding a major public rail inquiry in London.

4. Do judges have adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that they can act efficiently and without undue delay?

This is debatable. Various steps have, however, been taken and are being taken to improve administrative efficiency by the use of information technology.

5. Do judges encounter other material difficulties, which prevent them form acting efficiently?

The general pressure of work has substantially increased in recent years. Practical difficulties outwith the control of the judges, have led, particularly in criminal trials, to a less than efficient use of judges’ time.

6. Are appropriate measures taken to assign non-judicial tasks to other persons?

Generally, yes.

7. General comments on the funding of the courts.

The number of judicial appointments, both of Court of Session judges and sheriffs, has in recent years increased. This is primarily a response to the increase in the amount of court business. It is debatable whether the funding is adequate to meet the demands.

1 Although the devolution legislation of 1998 relating to Scotland, Northern Ireland and Wales has constitutional aspects.
2 At common law: “no matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all unreasonableness” (Sirros v. Moore [1975] 1 QB 118, 132 per Lord Denning). But the state may be required to pay compensation in cases of bad faith or wrongful arrest or detention. S.5(5) of the Human Rights Act 1998 provides: “In proceedings under this Act in respect of a judicial act done in good faith, no damages may be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention [on Human Rights]”. Article 5(5) of the Convention provides: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”.

3 The Lord Chancellor’s web-site says this: “By taking part in all three branches of Government the Lord Chancellor appears to challenge the concept of the separation of powers. However, his effective purpose is actually to maintain the separation of powers”.

4 Although the government did not act on the recommendation of the Roskill report that a new airport should be constructed off the Essex coast.
5 See the recent report by Lord Phillips, now Master of the Rolls.
6 Lord Widgery, the Chief Justice, was appointed to report in 1972. Lord Saville, a current Law Lord, is currently chairing a fresh tribunal of enquiry.
7 The use of judges in such contexts has been questioned in some quarters: see e.g. “What are judges for?” by Conor Gearty (Prof. of Human Rights Law at King’s College, London) (London Review of Books, 25th January 2001).
8 Who has indicated that he will take into account whether a Recorder’s performance “fully meets the requirements of the office”; whether he has sat the required minimum number of days; whether he remains in active practice or holds a full-time judicial office; and whether there is a continuing operational need. Until recently, the practice was in the first place to appoint practitioners to sit as “Assistant Recorders” without any set tenure at all. But doubts about the validity of this led to all Assistant Recorders being made Recorders with the security indicated during 2000.
9 The retirement age was until recently 75 for Supreme Court judges and 72 for Circuit Judges. For judges appointed since [1995] it is now 70 (under the Judicial Pensions and Retirement Act 1993).
10 Cf Administration of Justice Act 1973 s.9 (House of Lords and some others); Supreme Court Act 1981 s.12 (Supreme Court); Courts Act 1971 s.18 (Circuit Judges). They accrue day by day and must be paid at intervals of not longer than three months: Judges Salaries Act 1872 s.2. (In practice they are paid monthly.)
11 Only one judge has ever been removed in this way: a judge of the Irish High Court, Sir Jonah Barrington, in 1830 for embezzling fees paid into court.
12 The Lord Chancellor, if satisfied by medical certificate that a judge of the Supreme Court is disabled by permanent infirmity from the performance of his duties and is for the time being incapacitated from resigning his office may, subject to the concurrence of other judges identified in s.11(9), declare that judge’s office vacated.
13 This power is also very rarely invoked. One instance some 20 years ago related to a Circuit Judge found smuggling whisky and cigarettes. Cases where the Lord Chancellor intervenes informally, either requesting or insisting on a resignation on grounds of incapacity or misconduct, no doubt occur from time to time.
14 Now that the Convention on Human Rights has been incorporated into domestic law, the consistency of the Home Secretary’s role in this regard with that Convention on Human Rights is being challenged in the Court of Appeal in a case due for hearing in February 2001.
15 As to which see R. v. Bow Street Magistrate, ex p. Pinochet [1999] 1 AER 577 and Locabail v Bayfield [2000] QB 451 (CA).
16 Cf the German system of the “lawful judge” (der gesetzliche Richter), to whom the case must be allocated and by whom it must be dealt with throughout.
17 The way in which appellate judges were chosen became however a matter of very public interest in the Pinochet litigation after the first House of Lords divided 3 to 2, and a conflict of interest on the part of one majority Law Lord emerged. There is pool of some 12 Law Lords who could have sat. In fact, the five Law Lords who sat proved to have been chosen in order of seniority from those available to sit. When the Lord Chancellor sits (which he did not – and no doubt because of the political content could not - do in either House of Lords constituted for the Pinochet case) he not only chairs the Judicial Committee, but also asserts the right (otherwise normally delegated to the Senior Law Lord) to determine which of his fellows sits with him. This has been the subject of academic comment: Dawn Oliver [1999] Public Law 1.
18 Courts Act 1971 s.21 as amended by Courts and Legal Services Act 1990 Sch. 10.
19 Courts Act 1971 s. 9 as amended by Sch.10 of the 1990 Act; ss. 11, 16 and 19 of the Justices of the Peace Act 1997; and Sch.2 to the Courts Act 1971 as amended by Sch.10 of the 1990 Act.
20 Courts Act 1971 s.16 as amended) or certain other judicial experience (Sch. 10 of the 1990 Act).
21 Supreme Court Act 1981 as amended by Courts and Legal Services Act 1990 s.71.
22 Supreme Court Act 1981 s.9(4).
23 Supreme Court Act 1981 s.10 as amended by s.71 of the 1990 Act.
24 Supreme Court Act 1981 s.10.
25 It has, however, been suggested by observers from as different backgrounds as the Honourable Antonin Scalia of the U.S. Supreme Court (in his Inner Temple Millennium lecture) and Prof. Gearty of King’s College, London (cf the article cited in note 7) that the incorporation into UK domestic law of the Human Rights Convention will lead to further pressure for “some method of moderate political accountability” in relation to the appointment of judges. Justice Scalia recognised in saying this that the United Kingdom today is “justifiably proud …. of the strictly on-the-merits, non-political selection of [its] judges” (see also the response to question II(12). Any move towards US style “confirmation hearings” would certainly be resisted by both the Lord Chancellor and judges.
26 The non-political nature of appointments is wel-established both in principle and by the practice of Lord Chancellors of both major parties over many decades. See also footnote 25.
27 All the developments mentioned in this paragraph in relation to Northern Ireland are in due course envisaged for England and Wales, where the scale of the exercise of providing them is, however, far greater.

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