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The recruitment of lay judges. Impact analysis of the free quota proposal (2015:3)

In 2013, the Committee of Inquiry on Lay Judges submitted a report on the broadened recruitment and qualified participation of lay judges in court. Statskontoret (the Swedish Agency for Public Management) has been commissioned by the Government to carry out an impact analysis of one of the Committee's proposals: the introduction of a free quota through which all Swedish citizens may apply, or nominate someone else, for a lay judge assignment. The aim for the proposed system is for at least half of the lay judges to be elected through the free quota.

The overall objectives will not be achieved

Statskontoret's interpretation of the proposal is that it has two overall objectives: to reduce the political element in the recruitment of lay judges and to achieve a more balanced composition of the body of lay judges, particularly in terms age.

Statskontoret's analysis shows that the political element essentially remains, although the proposal opens the system to a broader recruitment. A full depoliticisation requires completely different measures. Our analysis also shows that a free quota is unlikely to alter the age composition of the lay judge body to any greater extent.

There is interest in a free quota among the public and associations

Statskontoret's commission included a survey of citizens. Two thirds of the respondents state that their interest in applying for a lay judge assignment would increase if a free quota were introduced. More than half of those who are not interested in applying under the current system, i.e. through a political party, state that a free quota would increase their interest. However, it is uncertain whether all Sweden's municipalities and county councils will have a sufficient base for electing 50 per cent of lay judges through a free quota.

Non-profit associations also show an interest in nominating members for a lay judge assignment. Among these there are associations which represent specific interests or groups in society. As a consequence, undesirable special interests might be given access to judicial operations. This is however inevitable with the Committee's proposal.

Improved terms of service are necessary to increase the proportion of younger lay judges

Older persons are clearly overrepresented in the body of lay judges today, and a free quota would in itself probably not lead to a rejuvenation. The overrepresentation of older persons is even greater when it comes to actual service in the courts. Nor this situation would be affected by a free quota. According to Statskontoret, rejuvenation therefore requires improvements to lay judges' terms of service.

Regarding the public's interest in applying for a lay judge assignment, our citizen survey shows that a higher level of remuneration is of greater significance to younger persons than to older persons. An increase in this fee would probably attract a greater number of younger persons to apply for the assignment and also increase their incentive to serve.

Our analysis also shows that more than one in three lay judges has had the assignment for eight years or more. Of these, 80 per cent were aged 60 or older. According to Statskontoret, a rejuvenation of the lay judge body can be achieved by limiting the number of consecutive terms a lay judge is allowed to serve.

There is a risk that suitability cannot be guaranteed

Statskontoret's analysis indicates that many are doubtful as to whether the suitability of lay judges can be guaranteed if a free quota is introduced. Only 19 per cent of heads of court surveyed by Statskontoret believe that this is the case. Lay judges and municipal representatives are also doubtful as to whether suitability can be guaranteed.

The candidates currently nominated by political parties are usually well-known through their having had various political assignments. When examining suitability, the knowledge about the candidates which this entails is in our opinion difficult to replace.

As there is no experience to draw from, it is difficult to assess the consequences of the proposal with regard to guarantees of suitability. However, according to Statskontoret, there is a risk that a greater number of unsuitable persons might be elected as lay judges if a free quota is introduced.

Question marks regarding the proposal to give local government the task of handling suitability assessments

The Committee of Inquiry on Lay Judges proposed that local governments, and tentatively their officials, be given responsibility for examining the suitability of applicants and nominees. According to Statskontoret, there are a number of problems and question marks connected to this proposal.

The proposal differs from what normally characterises the delegation of tasks from central to local government since municipalities and county councils, in this case, have no operational responsibility for the task. Furthermore, the task belongs to an expenditure area for which central government has the primary responsibility. Partly due to this reason, many of the local government representatives we have interviewed are hesitant towards assuming responsibility for examining suitability.

The proposal means that the local government administration or the responsible official may influence which candidates are nominated to councils, both candidates from political parties and candidates from the free quota. Furthermore, the proposal does not prevent a larger number of free quota candidates from being elected to ensure that they constitute more than 50 per cent of the lay judges. This means that applicants from the free quota might drive out politically nominated candidates. The question is whether the political level has any interest or incentives for contributing to this. The priorities made in listings between free quota applicants and politically nominated applicants also mean that individual officials or administrations might come in a conflict of loyalty with respect to their employer, the municipal executive board. Ultimately, the problems surrounding these prioritisations are also true of elected assemblies.

The requirements that a lay judge has to meet are specified in the Code of Judicial Procedure. However, these provisions are rather vague and describe personal qualities. If local governments are to be able to make satisfactory suitability assessments it is, according to Statskontoret, necessary to supplement the provisions of the Code of Judicial Procedure with more concrete criteria for assessing suitability.

The proposal means that politically nominated candidates are to undergo a double suitability assessment, one by their own election committee and one by the municipal administration. According to Statskontoret, it is questionable whether politically nominated candidates should have to undergo this double examination.

Local governments might manage the task very differently

The municipal executive board is responsible for coordinating the municipality's tasks, and it is not possible for central government to require an individual municipal officer to perform a certain task. For this reason, municipalities and county councils might organise and manage suitability assessments in very different ways, both in terms of resources and their level of ambition. There is therefore a risk that examinations of suitability by local government will not be performed in a uniform manner. Ultimately, this could present a problem from the perspective of legal security.

The issue of public confidence is complex

Almost half of the respondents in our citizen survey believe that confidence in the courts would increase if a free quota were introduced, while only one in ten believes that confidence would decrease. The issue is complex, however. A more open recruitment would in itself probably lead to increased confidence. The same is true of a more representative age distribution in the body of lay judges. However, we have no evidence that the latter would be the case with a free quota.

Confidence in the courts might be adversely affected if a higher proportion of unsuitable lay judges are appointed. The same is true if there were to be a higher dropout rate, for example resulting from the election of a greater proportion of inexperienced persons. From a media perspective, a handful of high-profile cases would probably be enough to create an adverse effect on confidence.

The proposal of the Committee of Inquiry on Lay Judges means supplementing an already disputed recruitment system with yet another untested procedure whose effectiveness and functioning we know nothing about. The introduction of two parallel tracks for recruiting lay judges will make it even more difficult for the public to embrace the system. This too presents a risk of decreased confidence.

Statskontoret's recommendations and proposals

We have demonstrated that there are a number of uncertainties associated with the introduction of a free quota for the recruitment of lay judges, including guarantees of suitability and the way local government handles examinations of suitability. Nor do we know how many persons will apply for an assignment through a free quota. Against this background, Statskontoret proposes the following:

  • That the Government, in the event of its intention to introduce a free quota, starts a pilot scheme on a smaller scale. Statskontoret proposes that a pilot scheme of this kind be carried out in, for instance, three court districts for one term of office. The choice of court districts should be made so they are representative of the country in terms of factors such as demographics, labour market conditions, education level and the age of their current lay judges.
  • If the Government assesses there to be an impending risk of the Committee's proposal leading to the appointment of unsuitable lay judges, the recruitment process should be enhanced, for example through personal interviews or some form of personal test.

The proposal of the Committee of Inquiry on Lay Judges means that all candidates, both those politically nominated and those applying from the general public, will be subject to local government examination.

  • According to Statskontoret, only applicants through the free quota should be subject to local government suitability assessments.

Our analysis shows that a free quota will probably not lead to a more balanced composition of the body of lay judges. According to Statskontoret, the Government should therefore consider the following measures in order to rejuvenate the body of lay judges:

  • Increasing fees to lay judges as proposed by the Committee of Inquiry on Lay Judges.
  • Limiting the permitted number of consecutive periods of service to two. This limitation should only apply to lay judges who in the future are elected for the first time.