Good afternoon ladies and gentlemen. I am delighted to be here and would like to thank the Centre for Crime and Justice Studies for inviting me to speak to you today.
I am aware that this seminar is part of a series of lectures looking at developments in criminal justice. The establishment of the Judicial Appointments System and our ambitions to widen the range of judicial candidates are a particularly fitting subject for the series, and I am proud to be included amongst so many illustrious past and future speakers.
Today’s lecture is particularly timely, as it is almost a year ago to the day that the JAC was launched. Next week will be our first anniversary. We were set up on 3 April 2006: one of the far-reaching changes brought about by the Constitutional Reform Act.
The Constitutional Reform Act is a development of major historical importance. It enshrines, in law, a duty on government ministers to uphold the independence of the judiciary. They are specifically barred from trying to influence judicial decisions through any special access to judges. And the establishment of the JAC means that for the first time in 1000 years not only is the judiciary fully and officially independent of the Government, but the Lord Chancellor no longer has the sole power to appoint a judge.
Given my position as a Commissioner of the JAC, I could be forgiven for having an inflated opinion of the organisation’s importance. But I’m always surprised by how relatively little attention was paid to our launch at the time. Before I came here this afternoon I did a quick search of the news archives, to see what was reported in the papers about our launch. I learned that on 3 April 2006, Oxford had just won the boat race, Michael Owen had been refused planning permission on an extension on his house and No 10 and the Treasury were at loggerheads. But no mention of the JAC.
Tonight I would like to talk to you about why I believe the JAC’s launch was so significant. I will outline how we select judicial office holders, and the qualities that we believe make a good judge. I will then describe the work we are doing to widen the range of judicial applicants, and how in doing so we will contribute to public confidence in the judiciary, and the criminal justice system.
Background to the Act
The Constitutional Reform Act was designed to enhance the independence of the judiciary and to ensure clarity in the relationship between the Executive and the judiciary. In a modern society it is no longer acceptable for judicial selection to be made by a government minister. Greater independence is intended to enhance public confidence in the judiciary, and also to ensure that the system of appointments is efficient, fair and transparent.
There is no denying that these changes were necessary. Until 1993, the system of judicial appointments in the UK was what was described by the Home Affairs Committee at the time as “a closed system of selection by peers and supervisors which is free from scrutiny and largely free from challenge or redress”.
The Law Society, likewise, described the system as “a very peculiar creature indeed”. It urged the Lord Chancellor to establish an independent appointments commission to help improve public confidence in the objectivity and even-handedness of the process.
Over the next 10-15 years the appointments system gradually evolved and a number of improvements were made. In 1993 the then Lord Chancellor, Lord McKay of Clashfern, introduced specific competitions (what we now call selection exercises) for judicial vacancies. He announced a more open system of advertising; more specific job descriptions; more structured consultations on candidates; and the involvement of lay people in the appointments process.
His successor, Lord Irvine of Lairg, showed an appetite for further measures, including commissioning a study of whether safeguards against racial or sex discrimination were effective in selection procedures for judges and Queen’s Counsel.
These were all welcome developments. But they did not go far enough, and they did nothing to encourage people outside the stereotypical group of most appointees to think that their application would be seriously considered. As the Association of Women Barristers wryly put it: “the plums fall very close to the tree”.
So in March 2001, the Commission for Judicial Appointments was established. Despite its title, CJA did not select candidates for judicial office, and despite its similarity to JAC in name, it was not in any real way our predecessor body. Instead, its job was to review appointments procedures, and to investigate complaints from unsuccessful candidates who felt that their application had not been treated fairly and properly. It was also asked to recommend further improvements to the process.
The Commission was the catalyst for a number of significant improvements, including the introduction of assessment centres for some judicial appointments, and the provision of formal feedback to unsuccessful candidates. But it complained of a continuing lack of transparency and revealed that not only did the public not understand the judicial appointments system: the legal profession itself was also in the dark.
Two years later, in July 2003, the Department for Constitutional Affairs issued a consultation paper entitled Constitutional Reform – A New Way of Appointing Judges. This was one of four consultations which together paved the way for the new Act. The Constitutional Reform Act received Royal Assent in 2005, and the provisions concerning the judiciary were activated in April 2006, with our launch.
So, now some general background about the JAC. Our primary task, which we have taken over from the government, is to select judges and tribunal members in England and Wales.
In carrying out our duties, we have very specific responsibilities, including three statutory duties.
The first is to select candidates solely on merit. The reputation and quality of our judiciary cannot be compromised - we must select the very best. And let me stress that merit is not the enemy of diversity. For us, diversity means the search for merit, wherever it can be found.
The second duty is to select only people of good character.
And the third duty is to have regard to the need to encourage applications from a wider range of eligible candidates. Our biggest challenge is ensure our search reaches all those who are qualified, but who may have been put off from applying in the past.
Our role is solely to select and recommend, not to appoint candidates. For each vacancy JAC Commissioners will select one candidate to recommend to the Lord Chancellor for appointment. The Lord Chancellor can reject that recommendation but he is required to provide his reasons to the Commission. He cannot select an alternative candidate.
The JAC is made up of 15 Commissioners, including the Chairman, Baroness Usha Prashar. The Commission includes senior representatives from across the judiciary and the legal profession, and five lay people who are all highly distinguished in their respective fields.
Each Commissioner has been appointed in his or her own right, not as delegates or representatives of particular professions. Twelve members, including the Chair, were selected through open competition, and three by the Judges' Council. It is the diverse make-up of the Commission which means that each member is able to bring knowledge, expertise and above all independence of mind - resulting in real breadth for the Commission as a whole.
I think that more than in most similar bodies, Commissioners work very closely with the JAC Leadership team and staff. In addition to attendance at Board meetings they are closely involved with the day-to-day policy development, both through working groups and through their participation and close involvement in the selection exercises we run.
Our three priorities
The Commission set itself three priorities for its first year.
The first was to define merit – in other words, to define what makes a good judge.
Once defined, merit had to be identified. So the next priority was to develop the fairest and most effective ways of assessing candidates.
The third and equally important priority was to devise ways to reach and encourage a wide range of applicants.
There’s no doubt that the changes were necessary. The system we had inherited was over-complicated, bureaucratic and burdensome, and did not reach out sufficiently to encourage people to apply. A number of myths had developed: you had to be an advocate; you had to have a certain educational background; you had to be known to the establishment. The message “don’t bother applying unless you are in a favoured position” seemed to be a general perception.
The Lord Chief Justice memorably summed up the perception in a speech at the Inner Temple last week “the system demonstrably ensured that those who are appointed were good, it did not however, demonstrably ensure that those who were good were appointed. It was criticised as being a system under which white Oxbridge males selected white Oxbridge males.”
Last May, the DCA published some research, which explored the attitudes of solicitors and barristers towards judicial diversity and a judicial career. This research confirmed the urgent need for the JAC to address these issues. Responses were predictably mixed – some people felt that there was no problem with the current situation; others felt that the entire legal system was irrevocably sexist and racist. But the findings about the barriers to entry were particularly interesting.
A key issue was that many respondents – particularly solicitors – had simply never considered the judiciary as a career. So clearly raising general interest and awareness is an important priority.
The application process itself was seen as discouraging, especially the application form, which was considered time consuming and daunting. Streamlining and demystifying the process was therefore also an important requirement.
Many participants in the survey were concerned that they would not be considered good enough or have the right experience to be successful, or that their increased speclialisation would count against them. There was a prevalent concern about ‘fitting in’, and a strong belief that the judiciary would only welcome those in its own image. Yet as the report noted, the skills required to be a ‘good’ judge are not necessarily the same skills that make a high performing barrister or solicitor. So the need to be open and transparent about the qualities and abilities required for judicial office was clear.
These are, of course, major tasks, and it has been a challenging first year. There has been no shadow running period for the new organisation, so at the same time as developing our new approach we have been doing the ‘day job’ of running selection exercises at the same time as recruiting our new staff and setting up our new office systems. Nonetheless, we have made good progress.
Qualities and abilities
In October last year we published our new definition of merit: the qualities and abilities we believe are required in a good judge. In place of the previous system of nine competencies and up to 50 supporting behaviours (all of which candidates were expected to demonstrate in their applications), we have identified five core qualities:
Intellectual capacity. We are looking for people who show a high level of expertise in their fields; who can quickly absorb and analyse information; and who have appropriate knowledge of the law, and its underlying principles.
Personal qualities. We want people who demonstrate integrity and independence of mind; who show sound judgement and are decisive and objective.
We will select only those candidates who show that they are able to treat everyone with respect and sensitivity, and are willing to listen with patience and courtesy.
Authority and communication skills are essential. Judicial appointees must be able to inspire respect and confidence, and to maintain authority when challenged.
And they must be efficient, able to work under pressure and show appropriate leadership or management skills.
This list is designed to be adapted slightly, depending on the nature of the role for which we are recruiting: for example, there is one model for legal members of a tribunal, and a separate one for professional and general members, where the requirement for legal knowledge may differ.
Streamlining the selection process
Our second priority was to establish the fairest, most effective and efficient assessment methods. In doing so, we have systematically reviewed the entire process of judicial appointments, from where posts are advertised to the final recommendation to the Lord Chancellor. We have also listened to feedback from the judiciary and the legal professions, as well as drawn on a range of research and recommendations from bodies
We have determined to make our processes as clear and objective as possible. Here are some of the changes we have introduced:
We have streamlined the application process. Largely thanks to our new, more succinct definition of merit we have been able to reduce the length of the old application form by almost a half.
We are moving towards replacing the previous system of paper-based ‘sifts’ with technical tests, which we believe are more objective and more consistent.
We are being more targeted in our approach to taking references, in order to reduce the burden on referees.
We are extending the use of role plays, which we believe are the best way of testing how a candidate might react to a real life situation.
And we will shortly be recruiting new panellists.
It’s worth looking at the High Court selection exercise which we launched at the end of October last year. This was first selection exercise to be run using our new processes, and it helps illustrate the extent of the changes we have introduced.
The selection exercise was advertised more widely than ever before: not only in The Times but also Law Society Gazette, Counsel Magazine, Legal Week, Solicitors Journal, the Lawyer and others. It was also, of course, on the JAC website and our monthly newsletter.
All those interested in the vacancies were required to apply through the same channel: they were asked to complete an application form or send in their CVs. So no ‘fast track’ route for candidates favoured by the existing judiciary.
References were sought fairly and openly. In place of the previous system of automatic consultation (or ‘secret soundings’), which had fostered so much suspicion and secrecy, applicants were asked to nominate up to six people of their own choice as referees. In addition the JAC nominated up to three people from a published list of sources whom we felt were properly placed to provide information on the applicants’ track record. These JAC-nominated referees included senior judges for those candidates who held a judicial office, line managers and academics. We also sought the views of the Heads of the Division. In all, we received almost 1000 substantive references.
The candidates were assessed against the JAC’s published qualities and abilities, using the information on their application form and their references. All those who were shortlisted were invited to meet a selection panel, chaired by JAC Chairman Baroness Prashar and including vice-Chair Lord Justice Auld and Sara Nathan, one of our lay members. This is the first time that interviews have been used: previous High Court competitions have been dealt with by way of paper assessment only.
We have been pleased with the reaction to the selection exercise. Because the process is still underway we are not in a position to publish any figures, but the anecdotal feedback from candidates has been very positive.
It is worth emphasising here that no one element of the selection process – for High Court or any other role - is more important than others. Candidates tend to focus on one aspect of selection, for example their referees, or their performance at interview. But each stage of the application counts towards the result. It is the process as a whole that it important, and the information on the initial application forms, references, performance at interview or assessment centre all contribute towards our decision-making.
Widening the range
Our third task was to devise ways of reaching a wider range of applications. You have asked me to focus in some detail on this subject. And so before I describe what we have been doing I think it is worth looking at the current state of play regarding judicial diversity.
Last month, the DCA published its final report on the judicial appointments process. The period covered was 2005-2006 i.e. the year before the JAC was launched. The figures show a promising trend. A total of 337 judicial office holders were appointed, through 32 competitions. Of them, 137 appointees (or 41%) were female and 48 (14%) were black or minority ethnic candidates. In 1999, by contrast, 24% appointees were women and 9% black or minority ethnic.
The JAC is determined to maintain this positive trend. But despite these very encouraging new appointments, the make-up of the judiciary is still overwhelmingly white and male. Here are the figures for March, this very month.
Let’s look at gender first.
There are 54 holders of the highest judicial offices (Lord Justices of Appeal, Heads of Division and Lord of Appeal in Ordinary). Just 4 are women.
Of the 108 High Court judges, just 10 are women – 9%.
73 out of 639 Circuit judges are women – 11%
Amongst recorders, 15% for women.
The proportion of women office holders increases the further down the judicial career ladder you look. For District Judge the figure is 22% women; and for Deputy District Judge 28% (this latter is the highest proportion of women of any judicial sector excluding magistrates).
Turning to representation of black and minority ethnic office holders:
Every one of highest office holders is white. There is one non-white High Court judge – less than one per cent.
It’s about the same for Circuit Judges: of 639 office holders, nine are black or minority ethnic – that’s just over 1%.
4% of recorders are non-white, although encouragingly the figure rises to 9% for recorders in training. That’s by far the highest proportion of non-white office holders. The pattern seems to mirror that for women candidates: the higher up the ladder you are, the most likely you are to be male, and white.
So, while the trends are encouraging there’s still a long way to go. That is why we have developed a judicial diversity strategy, jointly agreed by the Lord Chancellor and the Lord Chief Justice.
The strategy aims to: “bring about a more diverse judiciary with increased understanding of the communities it serves, in order to ensure a judiciary of the highest quality which contributes to increased public confidence in the justice system”. It comprises four strands of activity:
The first strand is to promote judicial service and widen the range of those eligible to apply for judicial office. This is a major area of work to which I will return in a moment. Expanding the pool of eligible candidates requires the combined and continuing efforts of the DCA, Bar Council the Law Society, other professional bodies, academic institutions and of individual firms. Everyone needs to encourage the widest range of the brightest and best people to take up the law, and to ensure that no-one feels excluded from any job within it.
The second strand is to encourage a wider range of judicial applicants, to ensure the widest possible choice of candidates for selection. This is the role of the JAC, and I think that in just 12 months we’ve made a good start.
We are using better-targeted and more prominent advertising to encourage people to apply, and we are also expanding and modernising our outreach activity, including a much greater emphasis on online marketing and working in collaboration with groups such as the Association of Women Barristers, Society of Asian Lawyers, Black Solicitors Network and many others.
In addition to marketing individual vacancies, we place great emphasis on our outreach work and on giving more general information about the appointments process. We exhibit and speak at a range of conferences and events, including the Bar Council and Law Society annual conferences, and, for this year, we’re pleased to be running a panel session at the Society’s Biennial Minority Lawyers event in April. At the last count we had participated in over 30 speaking engagements in 12 months.
Three times a year we run a series of judicial careers roadshows, held in cities across the UK. They are intended to demystify judicial careers, and to encourage delegates to consider applying. Our next roadshows will be in May/June in six cities including London. Details are on the website. If anyone here is interested in a judicial career then I would encourage you to attend one of these events.
It’s important to stress here that our diversity policy does not only include gender and ethnicity; we also focus on disability, and on the professional backgrounds of judicial candidates. There has been a long tradition at the Bar of moving towards judicial appointment during one’s career. This career progression has not been common amongst solicitors, or those in academic life or those at the employed Bar.
We recognise that not all firms of solicitors are supportive of those who want to take on judicial roles. This is a great pity – there is so much to be gained, for the firm as well as the individual. It can be enormously helpful to understand first hand what the judge needs to handle a case and make decisions. Judicial experience is thus of benefit in doing client work, and those who sit can offer invaluable training to other solicitors in their practice. It could be seen as the equivalent of pro bono work - it will give the solicitor a broader base and will also be of benefit to the firm.
We are beginning to see some welcome movement here – the number of solicitors appointed to judicial office is increasing – and the JAC is committed to building on this.
It is too early to judge properly the results of our outreach activity, but in general the signs are encouraging. For example, the number of applications for some selection exercises has risen by 50% or more.
The third strand in the trilateral diversity strategy is to promote diversity through open and fair processes for selection to judicial office solely on merit. Again, this is the responsibility of the JAC and again we have made good progress. We have developed a framework for equality proofing all of our procedures, and we will publish our first draft equality scheme for consultation.
The fourth and final strand is to ensure that the culture and working environment for judicial office holders encourages and supports a diverse judiciary and increases understanding of the communities served. The training, support and career development of judicial office holders is the responsibility of the DCA and the Judicial Office.
Measuring our performance
I hope I have explained the three tasks we set ourselves this time last year, and the progress we have made towards those. Of course, designing these new systems is all well and good, but we have to know if they are working. So, what would success look like?
Under the tripartite diversity strategy, we undertook to measure progress against the ‘eligible pool’ of lawyers (or for some tribunals, professional applicants). In other words, we are aiming for the proportion of applicants to mirror the proportion of women, ethnic minorities, or disabled people in that particular pool of qualified people.
So it is futile to concentrate just on the diversity of the judiciary when the problems are linked so intrinsically with the diversity of the legal profession as a whole.
Until relatively recently, intake to the legal professions has been dominated by white men from a narrow social and educational background.
Whilst some progress is being made, we welcome the efforts by our partners, other professional bodies and the Department to encourage more people from different backgrounds into the law.
As the legal profession remains unrepresentative, our ability to change the diversity profile of the judiciary overnight will be limited. Particularly at the highest levels of judicial office. But we are confident that by widening the range of applicants and by ensuring that there is no bias in our processes which disadvantages any particular group – be they women, ethnic minorities, people with disabilities or even white men - we can bring about greater change over the next few years.
I am asked with rather frustrating regularity whether there is any tension between merit and diversity. I want to be clear here that we select candidates on merit, and merit alone. But at the same time, our task is to seek out that merit wherever it can be found. We do this by encouraging more people to apply for judicial office – people who have the required qualities and abilities but who, for all sorts of reasons, have been put off applying in the past. Diversity in the field; merit in the selection.
I want to stress, too, that we do not select to targets and by law cannot discriminate positively in favour of any particular group of individual. We are driven by our duty to appoint on merit, not by quotas, or boxes to tick. But we recognise the need to measure our performance, and we will be closely monitoring both the management and the outcomes of selection processes.
We believe strongly that our work will sustain the confidence of the public in the judiciary by removing the accretion of myths around judicial appointments. We have disentangled the conflicts, confusions and contradictions of the old appointment processes, and reached out to new potential candidates. Our new processes are fairer and open and above all, the selection of candidates is made by 15 independent-minded Commissioners, who are not influenced by anything other than a vigorous commitment to merit.
Public confidence is crucial. In today’s world we are facing dangers and doubts on a scale not seen for 60 years. This puts pressure on many of our institutions, not least the courts. Whatever those pressures – from the media, from public opinion, or from government – the judiciary must be seen to uphold the values of justice and independence for which they are renowned.
I hope I have described why the establishment of the JAC was of such importance, and how the work we do will enhance the reputation of and public confidence in the judiciary. I hope, too, that I might have inspired some of you here tonight who are eligible to consider applying for judicial office. There is no doubt that it is one of the most challenging, exciting and rewarding careers.
And now I would be pleased to answer your questions on the JAC, and the judicial appointments process.