Appointment of King's Counsel in Scotland 2025

Observations

Although the King’s Counsel nomination process differs from arrangements for public appointments by the Scottish Ministers under the Code of Practice for Ministerial Appointments to Public Bodies in Scotland and the pool of potential applicants is limited and specific to a singular field of practice, it is a thorough and rigorous process that has been honed and improved over recent years. The changes introduced last year to the wording of the Legal Ability and Experience criteria is an example, so too the addition this year of the President of the Sheriff Appeal Court to those from whom comments are sought to help inform the overall assessments. As noted in my report last year, the arrangement for all judges to be asked for comment and for a scoring panel of senior judges to consider and discuss applications in detail delivers breadth and depth to the process. I consider that deciding on nominations without interview is appropriate and proportionate.

Matters I discussed with the Lord Justice General included the panel’s assessment of applicants with extensive involvement in long-running Public Inquiries; the consideration of applicants who have not practiced in the superior courts for at least thirteen years but who have relevant prior experience; and the approach taken to weighing the panel’s scores and assessments alongside the assessments by judicial colleagues and referees, including when these differ on the suitability of an applicant to be nominated for appointment as King’s Counsel. The Lord Justice General observed that the extensive and diverse experience brought by the panel and their ability to consider an applicant’s overall merits helps ensure a fair and comprehensive evaluation.

The discussion with the Lord Justice General was informed by consideration of the panel’s assessment of and conclusion reached on a number of the applicants.

The Lord Justice General is going to consider whether the criteria should be adjusted to refer to the experience being gained by advocates involved in Public Inquiries.