Since it began work about seven years ago, the Judicial Appointments Board for Scotland has attracted a fair amount of controversy. Criticisms of its majority lay element, questions over the efficacy (and fairness) of its appointment procedures, accusations of pursuing political correctness rather than selecting the best candidate for the job, and doubts as to the quality of some of its choices for office, have dogged its progress.
Earlier this year the Board sent a lengthy questionnaire to every solicitor and advocate in Scotland in an attempt to gauge their impressions of how it operates, what it takes (and also what it should take) into account, and also their own ambitions, if any, for judicial office and how they rated their chances. The results have just been published, and make interesting reading.
Nearly three quarters of respondents, for example, appear to believe that you need well in excess of the minimum qualifications to be considered for a post. Yet 42% say the process does not result in the appointment of the most suitable people. Men tend to think that being female is an advantage; women tend to think the converse. Coming from the right background, and moving in the right social circles, are both seen as adding to your chances, though neither should (say most people) be relevant.
Some of the findings do suggest a degree of resentment on the part of unsuccessful applicants that they were not chosen. Whether or not that is true, the Board is in a difficult position. It has set out to increase the range and diversity of applicants; but the perception of what is needed to succeed will put off many less senior lawyers from applying, thus tending to delay rather than promote diversity. It also has the potentially competing objectives of selection solely on merit, and having regard to the need to encourage diversity in the range of individuals available for selection.
The Board considers that the survey provides a "building block for the consideration of practicable suggestions to increase the proportion of people from under-represented groups who apply for judicial office". Certainly the findings should help it at least to clarify the personal qualities and experience it is looking for. Perhaps also it should consider aptitude tests as a means of objectively assessing an applicant's suitability.
The most practicable suggestion, however, for increasing the range of appointees, might be to implement the proposal in the recently published Gill report for a new tier of district judges to take the more summary work, civil and criminal, of the sheriff court. It would be fair to expect such posts to be open to those with reasonable experience but who have not reached the status of high flyers, and to provide a stepping stone, if they prove their capacity for judicial work, to the more senior positions that they currently see as beyond them.