"Not for the likes of me"?

The Judicial Appointments Board for Scotland has been in existence since 2002. Its purpose is to select, on merit, individuals to be recommended to the Scottish ministers for appointment to judicial office and to make the judicial appointments system more open and transparent. 

Since its creation, the Board has worked hard to bring transparency to the selection process and to build a system in which the public, the profession and the politicians can have trust and confidence. A lot of progress has been made, but there is more work to be done.

The Board has been given renewed authority, strength and purpose following the Judiciary and Courts (Scotland) Act 2008 which established it as an advisory non-departmental body from 1 June 2009.

There are 10 Board members: a judge of the Court of Session, a sheriff principal, a sheriff, an advocate and a solicitor, and five lay members, one of whom is the chairing member. The two lawyer and the five lay members are appointed by ministers. The three judicial members are appointed by the Lord President. The Board has a small dedicated secretariat of five civil servants.

Fitness for office

Importantly, the 2008 Act reaffirmed the Board's status as an independent body that is not subject to the direction or control of any member of the Scottish Executive or any other person. It also placed two specific responsibilities on the Board. These are:

• to select, solely on merit, only individuals of good character; and
• to have regard to the need to encourage diversity in the range of individuals available for selection.

The Board believes that these two key principles - merit and diversity - are absolutely compatible. They underpin the Board's approach now and in the future.

Successful applicants will be those who can demonstrate their fitness for judicial office and the Board will make its recommendations solely on merit. It encourages and welcomes applications from the widest possible range of applicants regardless of professional or social background, gender, marital status, ethnic origin, sexual orientation, political affiliation, religion or disability.

Building on the work of its predecessor, the Board continues to develop selection processes and procedures that are open and transparent. In doing so it seeks to ensure that it attracts applications from people of the highest calibre and that the system is fair, accessible, and does not present barriers to any eligible person wishing to apply.

Looking back over the first year of its statutory existence, the Board has already accomplished a great deal. It has run two major exercises to select individuals for appointment to the offices of judge of the Court of Session and sheriff.

For shrieval appointments, the new Board has decided to adopt a pool of suitable individuals from which it will draw when making its recommendations to ministers as and when required.

The Board takes into account any views the ministers and sheriffs principal might have about the nature of the post and any particular skills or expertise required. In this way the Board is able to recommend an appropriate individual based on all the information available to it about the individuals in the pool and the requirements of the post.

The Board has also spent a considerable amount of time reviewing its processes and procedures in light of experience of the two exercises it has run. The Board recognises that, if people are to be encouraged to apply for judicial appointment, the application process must be as simple and straightforward as possible.

Demystifying the process

In October 2009, following a major survey of the legal profession, the Board published the report Continuous Improvement - An Analysis of Scotland's Judicial Appointments Process (Journal, November 2009, 28). As a result of this survey, the Board now has a better understanding of the makeup of the "eligible population", what members of the profession think of the judicial appointments process, the attractions and disincentives of judicial office, and what encourages people to apply, or discourages them.

One key finding from the survey was that people would be more likely to apply if they knew more about the selection process and what it involves. An oft quoted remark by respondents was: "They're not looking for the likes of me".

A major strand of the Board's work for the foreseeable future will be working closely with the judiciary, the Faculty of Advocates and the Law Society of Scotland to demystify the application process and to dispel some of the misperceptions that exist.

As a first step the Board, in conjunction with the Society and the Faculty, ran a series of awareness-raising events last month in a number of locations to explain the appointments process to members of the profession. These were the first events of their kind and the Board is currently evaluating the feedback provided by those who attended.

The next exercise to select individuals for inclusion in the pool of candidates to be recommended for vacancies in the office of sheriff arising in 2011 was advertised on 2 July. The closing date is 6 August.

Selection exercises are advertised in the press, the professional journals and on the Board's website (www.judicialappointmentsscotland. org.uk). The selection process normally takes around six months.

Applicants must submit an application form (available on request or downloadable from the website), three examples of written material, and the names of three referees, two of whom must be legally qualified and able to provide an assessment of the applicant's legal knowledge, skills and competence and his or her personal and judicial qualities. The third referee may or may not be legally qualified and is only required to comment on the applicant's personal and judicial qualities. Referees do not have to be High Court judges!

Applicants are required to have at least 10 years' post-qualification experience. The selection process aims to assess applicants' qualities and abilities in five broad areas:

• legal knowledge, skills and competence;
• intellectual capacity and powers of reasoning;
• personal characteristics;
• case management skills and efficiency; and
• communication skills.

Applicants are shortlisted for interview on the strength of their application form, the written material provided and the references submitted, using an agreed scoring system. The Board will consult the Lord President, sheriffs principal, the Faculty of Advocates, the Law Society of Scotland and the Scottish Legal Complaints Commission as to whether they are aware of any reason which might cause the Board to consider that the applicant is unsuitable or unfit for appointment to the office for which he or she has applied.

The scoring system used by the Board is available to any applicant for judicial appointment on request.

Final selection

Interviews are normally held in Edinburgh. The interview panel comprises three lay Board members and three judicial or legal members.

The interview is in three stages. The first stage involves the applicant being given 45 minutes to study a piece of legal material provided on the day. This is followed by a 45 minute discussion about the legal material with the judicial and legal members on the interview panel. The lay members of the panel are present but do not take part in this discussion. The purpose of the discussion is to assist the legal members of the panel with their assessment the applicant's legal knowledge, skills and competence.

The second stage is a 10 minute presentation by the applicant on a topic given in advance.

The third stage is a 40 minute interview focusing on the personal and judicial qualities required for judicial office. In this discussion the whole interview panel will assess all of the qualities and abilities mentioned above.

Selection does not depend on performance at interview alone. The Board makes its decision about an applicant's suitability on the basis of all the information about the applicant gleaned during the whole process. The final decision is made by the full Board.

The recommendations of applicants suitable for appointment are made in response to specific requests from the Scottish Ministers. The First Minister is required by law to consult the Lord President on any recommendation for judicial appointment. It is then for the First Minister to decide whether to make an appointment, or to recommend an applicant to the Queen for appointment, as the case may be.

The Board is only interested in selecting individuals on merit and in encouraging applications from people from the widest possible background. This can only be achieved if people have confidence in the system and feel that, if they decide to apply, they will be treated with fairness and respect.

I hope this brief description has provided some clarification of the selection process and will encourage the best of those eligible members of the profession to apply.

• Trevor Lodge is Chief Executive of the Judicial Appointments Board for Scotland.

Board hits the road

Peter Nicholson went to one of the seminars presented by Judicial Appointments Board members last month, to see what issues were raised.

The Edinburgh seminar to explain the work of the Board attracted a decent turnout from the profession - interestingly, it seemed to me, in much the same proportions, from a diversity angle, as emerge in applications to the Board and its ultimate appointments. Probably fewer than a quarter of those present were female and I only saw one person apparently from an ethnic minority.

The holding of the seminars perhaps showed the Board putting into practice how it reconciles its duties of encouraging diversity while appointing solely on merit: when the potential conflict was raised in questions, it was explained that the Board works to make as many people as possible aware of the opportunities, but in a competition it appoints solely on merit.

Sir Muir Russell and Professor Andrew Coyle of the Board presented on its aims and then gave an insight into the application process, much as described here by Trevor Lodge. It might be worth adding that in deciding on the size of its approved pool from which it will recommend appointments to particular vacancies, the Board will attempt to match it as accurately as possible to the number of posts requiring to be filled over the coming year, to minimise uncertainty for those involved. The number of applicants invited to interview will in turn bear a reasonable proportion to the size of the pool. So if you don't make it through to the pool, it doesn't necessarily mean you are regarded as unsuitable or that you shouldn't enter further competitions.

Feedback to candidates is available on request: Sir Muir said he phoned anyone who asked for it and tried to give guidance as to whether they might reapply or perhaps gain some further career experience first.

In answer to a question from the floor, Sir Muir confirmed that if a person in the pool is not recommended for an appointment during the year, they would have to reapply to be included for the following year, although they will probably be waved through the first stages of the selection process.

Does the Board have an "eye towards specialisation", someone asked? So far, it has decided to look for people with a broad traditional range of skills and abilities; indeed it has the impression that those with more specialised backgrounds are anxious not to be categorised. Recognising that it is unlikely to be able to appoint ready-made judges, it seeks people who "delight and have a capacity for engaging with the law", as one member has put it. In other words, it looks for the ability, the enthusiasm, the mental set that gives confidence that that person will do the job.

What about the set exercise at the interview itself? Someone wanted to know if it takes account of a candidate's experience. The answer is that everyone gets the same one (the last was on evidence requirements), but the panel is "looking for an understanding of how you use a piece of law" and what you bring up for discussion, rather than to assess whether you got the law right or not.

And what is the situation regarding part-time appointments? The Board members admitted there is still quite a long slate of previously approved people, and it is difficult at present to predict future demand, but there may be a competition in the first half of next year.