Opening up the bench

You might think that when the Judicial Appointments Board for Scotland received 214 applications for the first round of shrieval vacancies they advertised, they felt the job was more than they bargained for. But Chairman Sir Neil McIntosh gives no hint at all that numbers might be more than the Board can cope with.

“In some ways I would hope that we will have even more applications when we do it again as people will have seen the way we approached our task and hopefully we’ll have been able to demonstrate that there’s no barrier to anyone who feels that they have the relevant experience and the capabilities from coming forward.”

This theme becomes a leitmotiv running through our interview. Whether speaking of gender or ethnic balance, appropriate procedures or the scope of the Board’s work, Sir Neil comes over as genuinely seeking ways to encourage as many as possible to offer their services.

A recurring theme in the whole judicial appointments debate has been the apparently conflicting pressures reflected in the official remit, by which the Board must appoint strictly on merit but should also “consider ways of recruiting a Judiciary which is as representative as possible of the communities which they serve”. Sir Neil is comfortable with the tension. “The additional expectation – I think the best way to express it is how the judicial system can best reflect society. It’s not purely representative … The first step really is not one of positive discrimination but to try to ensure there are no barriers which mean that those coming forward are not in themselves able to come from every sector of society.”

The equal calibre of female candidates is demonstrated, says Sir Neil, by the last round of appointments when the proportion of women remained at roughly 25% from application through to appointment – with no question of any quota system, he asserts.

The lack of ethnic and minority community applicants, on the other hand, reflects their under-representation in the profession. “Now again that is self evidently not a question of capability and so there may be reasons which mean that people from that background don’t see the law as offering real opportunities, and that’s something that we’d be anxious to explore with those who are engaged with that.”

Could recognising experience from outwith court practice be a means of broadening the range of appointments? “I think we would recognise that experience may not be defined narrowly and that in some cases we will be recommending people for appointment because of potential rather than because they already have all of the skills and all the range of experience they will acquire when they serve within the judicial system.”

“There are the statutory requirements and that’s what we apply. Beyond that it’s a question of assessing the relevant experience that a candidate puts forward and we have published the criteria which we use and continue to develop.” Any activity which has been in a judicial or semi-judicial setting is relevant, he adds.

Sir Neil regards the Board as still in a developmental stage, particularly in establishing procedures sufficiently robust to support appointments which may be for very many years on the bench. The application form has been improved so that candidates demonstrate how they match the criteria almost by a process of self assessment; reference material and the interview process have been similarly addressed. The assessment centre process in use in England and Wales is also being considered. Beyond that, Sir Neil adds, “We positively welcome suggestions, ideas, thoughts from those within the profession” – whether professional bodies or individual candidates or others who feel they have some feedback to contribute.

“It’s important that we develop appointment processes which ensure that candidates are able to demonstrate their qualities in the most effective way and also that we have the strongest base on which to make very significant recommendations.”

When the idea of the Board was under discussion, the proportion of lay members undoubtedly raised eyebrows in certain quarters. Sir Neil, whose own career lay in local government, culminating as Chief Executive of Strathclyde Region, concedes his interest but insists that the Board doesn’t see itself as two sides. “We simply do not see the way in which we work in that setting. And it’s certainly my perspective that the quality and calibre of the members of the Board is of the very highest … The one point which of course is fundamental is that the professional members of the Board are expected to be the prime advisers in relation to the professional ability of candidates and we recognise that. But what we’ve found is that we all bring something to the table from our own particular background.”

While interviews are carried out by smaller panels, both the initial sift of applications and the final consideration of appointments are normally by the full Board, at which, Sir Neil says, the range of members’ experience is applied in full. Lay members are always asked to offer their assessments first, to ensure that there is no conscious or unconscious deference to the lawyers.

The most surprising revelation in our discussion is that while Sir Neil feels it essential for it to be seen as independent that the Board be placed on a statutory footing, he does not want to change its purely advisory nature. “I think it’s right that in essence the appointment should rest with the First Minister who is democratically accountable. So the actual process of being a recommending rather than an appointing board is I think the right one.”

If the First Minister were minded to make a different appointment, perhaps following the Lord President who has the right to comment on recommendations, “I think that what we would expect is that there would be contact with the Board and that we would be advised and be able to make a judgment as to whether we thought that was reasonable or fair”.

And if a recommendation were not accepted for political reasons? “I think we would all have to consider our position. I mean that would simply be undermining the whole reason for our existence.”

“I should stress that every recommendation we’ve made to date has been accepted and there has been absolutely no political interference. We’re a fiercely independent group of people so from that point of view I don’t think our independence would in any way be challenged by still being a recommending rather than an appointing body.”

In its annual report the Board questions the current practice which gives it no role in temporary appointments to the Supreme Court bench, or in shrieval transfers (since vacancies are only advertised if not filled on being circulated to serving sheriffs). “We’d like clarification on those issues because obviously what we’re trying to do is to apply the general principles upon which we have been appointed … The situation is one in which we recognise there are different arguments, but we approach it from the principles on which we are established of openness, accessibility and equality of opportunity. That is being considered by the minister and therefore I make no further comment at this stage.”

Is the Board able to draw on experience in other jurisdictions? “As you look across the world you discover that we’re relatively unique in terms of the composition of the Board and the way in which this is handled. Probably in Canada you have one of the closer matchings. But what we’re doing is drawing from a range of international bodies to make sure that we don’t just simply make assumptions and presumptions.”

In England the prospect of an independent board remains at the stage of vigorous debate, but Sir Neil doesn’t insist on the Scottish model as the most appropriate, due not least to the differences in scale: “While we continue to involve all of our members in the broader processes of appointment, to do that south of the border would be much more demanding, much more difficult.” Equally the extent of lay involvement remains controversial. “I would expect people to be very dubious about having a lay chairman. It’s not for me to comment whether that helps or not. My own view I think would be that if you’ve got a good chairman it doesn’t matter what their background is if they’re able to carry through the job, but I’m conscious of my own limitations in that sense.”

As for appointments to any new Supreme Court, “To be honest I don’t have enough of a knowledge base of supreme court activity to be able to give an authoritative view on that. I think it will be very interesting to see how the appointment process is developed and that will come back particularly in Scottish terms to reflecting the distinctive characteristics and standing of the Scottish law system.”

As we conclude he volunteers the rather puzzling observation that lawyers are not best equipped to cope with job interviews. “While most people coming in are well accustomed to courtroom pressure, an interview is quite different, and we do have people coming forward who at times may not give of their best in an interview situation and therefore we’re anxious to ensure that we have as robust a process as possible that permits people to give of their best. That’s important.”

Whatever the process adopted, “At the end of the day there is still an element of pressure, but then of course the people who are going on to the bench will have to be able to cope with that. We’re just trying to make sure it’s fair to all.”