Commentary on Sections: Part 2
Section 58: Appointment of temporary assistant to Judge Advocate General
311.The purpose of section 58 is to enable certain judicial office-holders and lawyers, who already have considerable experience of sitting as judge advocates in courts-martial, to continue to be eligible to sit as judge advocates once the Armed Forces Act 2006 is in force, without the need for selection by the Judicial Appointments Commission (JAC).
312.A judge advocate is appointed by the Judge Advocate General to an individual court-martial. Under the current law, judge advocates must have a 5-year legal qualification, and the JAC is not involved in their selection.
313.That position will change once section 362 of the Armed Forces Act 2006 (AFA) comes into force, which is expected to be in January 2009. The AFA defines Judges Advocates as (a) the Judge Advocate General (JAG); (b) a person appointed under section 30(1)(a) or (b) or (2) of the Court-Martial (Appeals) Act 1951 (“the 1951 Act”) (Vice JAG, Assistant JAG, and temporary assistants to JAG); or (c) a puisne judge of the High Court of England and Wales who, following advice from the Judge Advocate General, is nominated by or on behalf of the Lord Chief Justice of England and Wales to sit as a Judge Advocate.
314.Once implemented this provision will mean that, apart from High Court judges and the Judge Advocate General himself, only persons appointed under s. 30 of the 1951 Act may be appointed as judge advocates. However, appointments under s. 30 of the 1951 Act require a selection by the JAC.
315.Over the past few years, the Judge Advocate General has adopted the practice of appointing judge advocates both from persons holding salaried office under s. 30 of the 1951 Act (ie Vice JAG and Assistant JAG), and also from a pool of qualified lawyers and judicial office holders, which currently numbers 12 individuals. The purpose of these amendments is to enable this pool to carry on sitting as judge advocates once the AFA is in force, without the need for a JAC competition. This section will amend the 1951 Act so that no JAC selection will be required for appointments to the position of temporary assistant to the Judge Advocate General under s.30(2) of the 1951 Act where the appointee has, within the last two years, been appointed as a judge advocate to a court-martial by the Judge Advocate General. However, the concurrence of the Lord Chief Justice is required for such appointments. Once a person has been appointed to the position of temporary assistant to the Judge Advocate General, he will be eligible to sit as judge advocate in a Court Martial when the Armed Forces Act 2006 is in force. This section will enable the pool of 12 judicial office-holders or lawyers, from which appointments as judge advocates are currently made, to continue sitting as judge advocates.
