The benchmark

 As reported last month (Journal, October, 31), the Judicial Appointments Board for Scotland recently published the findings of the survey undertaken by the independent research company, MVA Consultancy. This is the first survey in which the whole legal profession in Scotland has been asked for its views and perceptions of judicial office and the appointments process. It follows similar research carried out in Northern Ireland and England & Wales in recent years. The survey and report was commissioned by the Board, with the support of the Faculty of Advocates, the Law Society of Scotland and the Lord President.

For the Board, the research had  two main aims:

1. To establish the current makeup of the population that is eligible to apply for judicial office, and of the population that is not yet eligible – i.e. those who will be able to apply in the future. This is important for the Board to be able to plan its work and assess its success; and
2. To identify those factors which were perceived as either encouraging or discouraging to those who might consider applying. In this context, perceptions, whether reflected in reality or not, are critical since it is on perceptions that people base decisions.

In order to encourage applications from the highest quality candidates from any and all backgrounds, it is important for the Board to ensure that any misperceptions are identified and corrected. It is also important for all branches of the justice system to be able to consider how it should develop in the future (whether in the context of the appointments process, the conditions of service or other work-related factors, which may influence career choices in the legal profession).

Methodology

A mixed methods approach was employed, combining a postal survey and an online survey. The survey was issued to all members of the Law Society of Scotland (around 11,188 in all), all members of the Faculty of Advocates (around 748, including all 454 practising members), and all full time sheriffs and Senators of the College of Justice (around 178 in total). Part time sheriffs received the questionnaire as a solicitor or advocate.

In total, 12,114 questionnaires were distributed and 2,319 completed returns were received. This represents a 19% response rate, not atypical for surveys of professional groups.

All data were analysed by MVA Consultancy, with frequency counts generated for all variables, and cross-tabulations for each of the key questions so as to compare the responses of different diversity strands.

Who responded to the survey?

Overall, there was nothing unusual about the demographic characteristics of the achieved sample and, where comparisons have been possible, the sample is largely similar both to relevant aspects of the overall Scottish population and to the Society’s membership. These characteristics are very similar to the sample achieved in the Society’s 2006 survey on equality and diversity in the legal profession.

Good response rates were achieved from all branches of the profession, and the overall sample reflects the proportions of each branch in the overall population. As a result, solicitors account for the majority of respondents. Therefore caution is required when interpreting the aggregate results, as these may not be reflective of the views of the other professional branches. For this reason, the sample was disaggregated to reflect the views of the different branches.

Although a routing error resulted in a lower response rate to question 24, the achieved sample size (n=564) was sufficient to facilitate analysis of this question, and was found to be similar to the overall sample in terms of professional group and demographic background. This allowed the independent researchers to reassure us the findings were still sound.

Overall, the size and shape of the survey response is usable and useful, and the data gathered provides a reasonable sample of baseline data that the Board can use in its future work.

Who is eligible, and who applies?

The profile of those who were 10 or more years qualified as a solicitor or advocate, or were a sheriff or sheriff principal at any stage between June 2002 and the time of the survey, and were therefore eligible for judicial appointment, had some notable features when compared to those who were ineligible.

Most significantly, the eligible population consisted of a higher proportion of males than females. The percentage of those who were eligible to apply for judicial office and who have significant caring responsibilities was higher for this group than for the ineligible candidates.

Among eligible respondents, whether they had applied for judicial office or not, there was little difference between the profile of those who said they had previously applied and those who had not; this group is largely white British, heterosexual male, and without disabilities.

What attracts and what deters?

In general, more aspects attracted than deterred respondents, and these incentives appear to have a stronger effect than deterrents. The highest among these encouraging factors for those who were eligible to apply was “the intellectual and personal qualities needed to perform the duties of judicial office” (78%); others which featured strongly were pension arrangements (72%), the element of public service (71%), the change of career focus (62%), and the opportunity to experience a wider range of work (63%). Factors most likely to deter (in the 30-40% range) included geographical location or the need to work in different locations, disruption to family life, and (for some) a reduction in earnings.

Influences, perceived and desired

The survey asked what respondents believe does influence successful appointment, and what they believe should influence it.

There was a view, held by 83% of respondents, that having transferable skills and potential should be important, but only 48% perceived it to be important currently. The view that it should be important is held more by women than by men, by non-white ethnic groups, and by younger age groups – but is held fairly evenly across the professional groups, including full time judicial office-holders. In contrast, there is a less consistent pattern of opinion about whether experience of particular areas of the law is, or should be, influential (slightly more people see civil and commercial law as among the more important areas). Much more significant was the belief that court experience relevant to the post applied for should influence successful appointments.

The vast majority did not believe that biographical factors should have any influence on the probability of appointment, although there was a range of suppositions about what actually does influence it. Again, perceptions seemed to reflect the backgrounds of respondents, with contrary views emerging: for example, men saw being female as a positive influence but women saw being male as a positive. Being from a middle/upper class background was perceived by nearly half the eligible respondents as having a positive effect on applications, while being from a working class background was seen as having a negative influence by around a third. In addition, 67% of those eligible believed that “being in the right social networks” is a positive influence – although virtually none believed that it should be. In general, this view seems to be more frequently held by solicitors, women and younger members of the profession, with a very slight tendency amongst some minority groups (the numbers in these are not great enough to provide a statistically significant conclusion).

Being aged under 40 or over 60, having a mental health or communication impairment, and having caring responsibilities were considered by eligible respondents to have a negative effect. Moreover, over half of those eligible felt that mental health and communication impairments should have a negative impact. Women saw the issue of caring responsibilities as an issue of much greater concern than men (although some saw it as positive and others as a negative); more interestingly, a significant minority of respondents suggested that part time working and caring responsibilities should be considered as a negative factor to a greater or lesser degree.

Process: positives and negatives

There were split views regarding levels of confidence that the process results in the appointment of the most suitable people: a large minority (42%) stated that they were not confident, whilst 58% were either neutral or positive about this. The former tended to be older and advocates or solicitor advocates, while a greater proportion of women were also discouraged by this. Further, those discouraged by these factors were also more likely to have made an unsuccessful application to the Board. Given the perceptions about what affects appointments (see above), it is perhaps unsurprising that a significant number do not view the current process as always producing the best appointments.

A “slate” (the practice of advertising, selecting and recommending, in ranked order, a group of candidates from which appointments are then made over a stipulated period) has been used chiefly where it is anticipated that there will be a number of vacancies occurring for the same role during a year, most typically for the office of sheriff or part time sheriff. Its use did discourage some respondents (19%), but has no negative effect on 81% of the sample. Further, the requirements to fill in an application form, to identify referees, and to participate in an interview process had no negative effect on most (all above 70%).

Having good references, being known professionally by the judiciary, and being in the right social networks were all considered by over half of eligible respondents to have a positive effect on applications; but it was felt that only the first of these should have such an effect.

Nearly three quarters of respondents agreed with the statement “I would not consider applying for judicial office unless I had far in excess of the minimum experience required to do the job (currently 10 years for most offices, but 5 years for advocates in relation to senatorial appointment).” This has a significant bearing on the pool of applicants who are actually likely to apply.

What changes would bring more in?

Flexible working options were reported to encourage 72% of women and 37% of men. Women were also more likely to be encouraged by more judicial skills training, better guidance/training on the appointment process, and work shadowing schemes. All these possibilities were also seen as attractive to those not yet eligible to apply.

Over to the Board

The research highlights areas in which further progress can be made by the Judicial Appointments Board for Scotland in meeting its statutory obligation to encourage diversity in the range of individuals available for selection to be recommended for appointment to a judicial office.

The Board will give careful consideration to the report and discuss it with the Society, the Faculty and the Lord President.

Chris Orman is Secretary to the Board, Judicial Appointments Board for Scotland