Competencies and public appointments

I was somewhat surprised at the general tenor of Roderick Wylie’s article (Journal, October, 34), which proceeds on the premise that any failures in the competency-based selection process to identify those with the skills and ability for judicial or tribunal chairing appointments may be identified as largely those of the applicants, and not those of the selection criteria.

To my mind, there remains one appropriate criterion for appointment to judicial or quasi-judicial office, namely “Does the applicant command the respect of the bar and bench before whom he or she practises?” Those who do this, and who can demonstrate a breadth and depth of legal knowledge and ability, are those most qualified for appointment.

One of the key failings in the current application process is that it is simply not geared to identifying the judicial nature of the job. To take one example, the negotiation “skills” suggested by the author, in respect of fee structures and time allocation, are not matters that demonstrate in any way the possession of a judicial temperament or the ability to absorb and assimilate information. Asking an applicant for examples of what they have done in a non-judicial capacity cannot, in my view, enhance understanding of their ability to perform a judicial role.

The author further states that many solicitors “tended to undervalue what they did”. I suspect instead that solicitors and counsel with many years of experience in complex litigation, fatal accident inquiries and solemn criminal court practice, rather presume that those tasked with appointing members of the judiciary are fully familiar with such cases and do not require lengthy and patronising explanations of matters familiar to all court practitioners.

Some years ago, I was invited to interview for a post with the Scottish Criminal Cases Review Commission. Not one member of the panel had ever practised in a Scottish criminal court, and not one question in the interview related to Scottish criminal court practice. At the end, my view was the polar opposite of feeling that “each of the various competencies needed for the post in question has been thoroughly explored by reference to… past performance”, and I was left with no confidence whatsoever in the panel’s ability to identify key issues likely to arise before the body to which I had applied.

Rather than simply kowtowing to the emperors of management-speak, in my view the profession should challenge the notion that so-called competency-based selection procedures are objectively the most appropriate method for selecting those suited to judicial appointment. I found Mr Wylie's two page commercial for his own training programme to be of no benefit in advancing what should be a debate as to whether the current processes really identify the most suitable candidates.