Choice answers

It is charged with broadening the diversity of those who apply, but already has far more applicants than places available. Set up to replace a system open to abuse, it is accused by some of not achieving any better results. Its selections must be based on merit, but it has competing factors to balance. At first sight, the task of the Judicial Appointments Board for Scotland appears an unenviable one.

Its chair, Nicola Gordon, is nevertheless focused on the Board’s role in contributing to the future of justice in Scotland, through the integrity of its appointments process. A relative newcomer, having taken up her post in May 2017, she admits to having come in “knowing very little about it”, yet is making her mark on the Board’s procedures.

Detachment from the legal world is of course a positive attribute for six of the Board’s 12 members, including the chair: by statute the number of lay members must equal the number of judicial and other legal members. An engineer by training, Gordon’s experience is in oil and gas, latterly in strategic leadership roles that involved choosing people for challenging positions; she applied for the Board on retiring as “something interesting to do which would allow me to make a useful contribution”.

“Working with the Board has been really interesting because I brought a fresh perspective and the Board were very open to new ideas and to change and improvement,” she relates. “For example, we were using very outdated information management, and now we’re not, which makes the work we do more efficient and effective. But in addition we can improve what we do so it’s the best possible experience for applicants: there’s definitely opportunity for improvements and we have already put some of these in place.”

The applicant experience is something to which she returns during the interview, with the message that the Board wants to work with candidates to make the process as clear, simple and engaging as possible – “a way to help people show us how suitable they are, rather than an opportunity to trip them up”.

Judicial qualities?

That said, the great majority of applicants for judicial office are destined to be disappointed – which to Gordon is “one of our regrets”. The round now in progress, for fewer than 10 summary sheriffs, attracted 174 applications. (Senator vacancies are predicted by some to be a different story, though that is still to be tested during Gordon’s term.) However, she does not want people to be put off by rejection. “We’re keen to encourage people not to give up if they don’t initially succeed in being recommended for appointment. People may have been very suitable for a particular role but happened to apply in a particularly strong field.”

With figures like that, clearly it is crucial to show yourself in the best possible light in your application. Therein lies one ground of criticism, voiced by an anonymous solicitor at Journal, February 2018, 18: success requires the unjudicial quality of self-promotion; it is regrettable that applicants can seek out professional help to complete the form; more people should be offered written tests to demonstrate their ability.

Gordon counters that legal, personal and judicial qualities – and all must be present – have to be evaluated on the evidence people provide. “Not everyone is accustomed to writing application forms, or being interviewed, and not everybody does the best job necessarily demonstrating to the Board how they might be suitable. So we encourage applicants to seek support, whether through their own professional organisations or colleagues, in terms of putting their best foot forward.”

Applicants are asked to evidence what they have achieved in their career, and how they have delivered those achievements, “and we are comfortable that we can appropriately test their credibility”.

She adds: “Recommendations for appointment are made on an integrated evaluation of the application form, some written work and a discussion at interview, backed up by consultation. We are fortunate that we have many more quality applicants than vacancies, at least for the sheriff and summary sheriff positions, and our key task is to make sure the outstanding people are picked out. Inevitably the majority of applicants will be disappointed. The important outcome is that the highly suitable people are recommended for appointment.”

And written tests? Are they not used more extensively by the English Judicial Appointments Commission? “There are a number of different systems in use for different positions in the English and the Scottish systems, and we try to take a look across as many yardsticks as we can to evaluate a person’s application... We continue to be concerned that we have it right, so one thing we’ve done in the last few months is take a new look at the skills and abilities framework. We’re finalising a refreshed framework, and that’s based on extensive consultation of a very simple but a very important question: what makes a good judge?” 

Into the mix

I wonder whether people with less experience stand a chance if so many are chasing each post.

“That’s an interesting question,” Gordon replies. “What we are aiming for is a very open application that says, how can we make sure we pick out people of the highest calibre? And I think there is a real tension between bringing in people with possibly different backgrounds and experience, and taking enough account of the years of experience that somebody has, so these are good questions to ask.

“One point where I have real respect for the Board is the willingness to continually challenge how we go about things, and in dialogue with key members of the judiciary and the legal profession satisfy ourselves that we are properly recognising what the requirements of the roles are, now and in the future.”

That leads us to the question of diversity, something else the Board has to put into the mix with its selections. “The appointments are increasingly diverse, the numbers show that, and we believe justice will be best served by continuing that trend.”

Even as regards gender, though, the Board’s latest annual report reveals that relatively few women, never mind ethnic minorities, are applying for some posts. “It continues to be a challenge,” Gordon concedes. “But the trend is moving appropriately and I have to say that the sheriffs principal, of whom two out of six are women, are very enthusiastic; they tell us they are very keen to have more female sheriffs on the bench because it helps them with the work they are doing.

“You can always have a question about whether the pace is appropriate. But that’s why the partnership between the profession and the Board is important because these are strategic things about the profession and who is considering applying for these kinds of offices.”

Eye to the future

That partnership also means the Board working to widen the range of people prepared to consider judicial office, “through wider engagement, for example with the Scottish Young Lawyers’ Association, and we are trying to be more open so that we can build the trust and engage further with leaders of the professional bodies, through ongoing dialogue and indeed by this interview. This dialogue with the profession is really important to us. We are also looking more closely at how the way we do our work can be improved, and that includes challenging ourselves to ensure that nothing we do disadvantages or benefits any particular group”.

Engagement at an earlier stage in their careers is aimed at encouraging a broader range of people to consider the idea of a judicial position at some point – though more with a view to explain the application and evaluation process than to advise on particular career moves towards that end. “These are attractive roles, they are important for society and if I look into the future, society expects a broader range of people in these roles, and it’s our job to help that broad range of people to consider applying.”

Does the process allow people without a conventional litigation background to demonstrate their potential judicial qualities?

“That’s a good question; it’s something we need to continue to challenge ourselves about.” The Board’s website includes some individual career histories; in assessing experience the Board will look at candidates’ legal qualities, their knowledge and skills, along with their personal and judicial qualities. “We ask them to evidence that in terms of what they have done in the past,” Gordon explains, “and we give them scenarios and say what would you do... The depth of skills can be built in a number of different ways, that’s probably the best way to describe it. So we’re looking for qualities.”

After the event

Criticisms are nonetheless heard of the qualities of some appointees. Does the Board carry out any follow-up work to assess its selections?

“Judging performance in judicial roles is a difficult area because of the importance of independence amongst judges,” Gordon replies. “It is unusual among professional roles in that there is relatively little in the way of formal assessment of how judges are doing, and if you look at it another way, individuals don’t get much opportunity to benefit from learning in terms of how they are seen to be doing, nor a great deal of support in terms of how they wish to develop themselves. But the Judicial Institute is a world-renowned body supporting judges to be even better in role, and with tribunal judges there is now some more formal data being gathered in terms of how they are performing, and I expect that will prove useful to us.”

In addition, after each recruitment round the Board reviews how its processes worked: “both in terms of looking at learnings from a particular appointment, but also standing back and looking across the piece at what we have been doing, what can we learn between different rounds, and also what can we learn from colleagues in England or elsewhere in terms of what’s effective”.

She continues: “Another thing, one where I do bring something to the party, is that there is a lot of relevant experience in terms of placing people in roles other than judicial roles and we can adopt some of that modern thinking around how best to select people. There has been a lot of talk about competence-based selection, and that certainly has a role to play, but it’s not the be-all and the end-all.”

Respect agenda

Gordon emphasises how the legal and lay Board members work as a team. “I’ve been very much impressed by the quality of the people I’ve been working with on the Board, both the legal and the lay people. It’s a very collegial, teamwork atmosphere. The independence of the Board is an important safeguard in our democracy, and the teamwork is outstanding. Legal, judicial and lay members jointly make recommendations for judicial roles, which are vital for justice and society in Scotland. Lay members don’t contribute to evaluating legal skills or knowledge, but they play an important role in this commitment to independence and integrity, and I think that the challenge and the discussion between the legal and judicial and the lay members is an important part of recommending people who will play a good role on the bench.”

One thing the Board is working on is the length of the average round. “Some of these processes take a very long time, many months between an advert closing and people being appointed, and we have already streamlined and sped up some parts of the process that are within our control. We don’t think it’s fair to expect people to put their lives on hold for many months awaiting the outcome, and it’s not necessary. That’s an example of the kind of change we have been able to make, cutting a month out of the process and more to go.”

When will aspirant judicial office holders next have a chance to show their worth? “We expect to be recruiting senators in the next 12 months, and we are moving towards annual competitions for sheriffs and summary sheriffs. That’s our ambition. And equally there will be more tribunal appointments.”

With a large proportion of sitting judges now having been appointed via the Board’s processes, Gordon offers this overview: “This isn’t a perfect process; there is no such thing as a perfect process. It’s a thorough process; it’s a transparent process; it’s as fair as we know how to make it; and it’s our continuing goal that the way we do our work commands respect. It’s inevitable that there will be different views about some of the things we do, and we need to listen and learn from everything that comes back to us, but at the same time I say look to the cadre of people who are appointed and are doing an excellent job for justice in Scotland.”

Click here for a brief video interview with Nicola Gordon