A little over 10 years ago the Judicial Appointments Commission was set up to maintain and strengthen judicial independence by taking responsibility for selecting candidates for judicial office and to make the appointments process clearer and more accountable.
In the decade since, a significant amount has been achieved, not least that more than 4,300 recommendations for judicial appointment have been made. The JAC is recognised for its open and independent selection of members of the judiciary. It seems a good time to reflect on what this organisation has achieved and areas where there is further work to be done.
First 5 years: 2006 to 2011
The first Board of Commissioners put in place a selection process that was characterised by openness, fairness and transparency. As a new body, it was important that the Commission and its selections were from the outset demonstrably independent: and they remain so today. The days of ‘tap on the shoulder’ were replaced by the duty to make selections solely on merit, recommend candidates of good character and have regard to the need to encourage diversity in the range of candidates available for selection and ultimately appointment.
The inaugural chairman, Baroness Prashar, agreed with the Lord Chancellor and the-then Lord Chief Justice Lord Phillips of Worth Matravers to focus on 4 core target groups: women, those from Black, Asian and minority ethnic (BAME) backgrounds, solicitors and those with disabilities. The Commission also put in place a strategy to increase diversity: targeting outreach to under-represented groups, maintaining an open, transparent, evidence-based selection process, and working with key partners (Ministry of Justice, judiciary, bodies representing the legal profession) to break down barriers.
Second 5 years: 2011 to 2016
The JAC’s next 5 years were overseen by Christopher Stephens as chairman. They marked a time of key change as to how the JAC sought to fulfil its duties, building on the establishing work of the inaugural Commission.
In 2011, it was recognised that the appointment process took too long, was too expensive and had not had the impact on judicial diversity that had been expected. The JAC responded by putting in place a series of measures to speed up the appointments process and make it more efficient. It now averages less than 20 weeks from launch of a selection exercise to the successful candidate receiving an offer of appointment. Its budget has fallen from over £8 million to around £4 million a year.
A great deal of work has also been done to ensure the right selection tools are used to maintain the high calibre of appointments while encouraging a more diverse range of candidates to apply.
The JAC reviewed the selection process and tools and introduced a new competency framework tailored to each role, aligned to the Judicial Skills and Abilities Framework. It also refined existing selection tools to assess these competencies, particularly at the shortlisting stages. These changes have been made in parallel with the launch, in 2015, of a new online recruitment system: another example of systematic efforts to produce constant improvement of the process of selection at the JAC.
The JAC has also continued to develop the original strategy to increase diversity. This has been supported by the Crime and Courts Act 2013, particularly the introduction of the equal merit provision. The Judicial Diversity Forum has also strengthened its remit in 2016 and the representatives who attend it have affirmed their commitment.
Women have continued to make good progress in the past decade, comprising between 44 and 52 per cent of all candidates recommended to legally qualified roles in each of the past 3 years. Over the past 10 years, 1,800 women have been recommended for judicial office.
BAME candidates have applied and been recommended in greater numbers since the JAC was established. The level of recommendations remains broadly in line with their level in the eligible pool at 10 per cent (over 400 recommended BAME candidates). However, there is little progress at more senior levels, and there is more to do in encouraging and supporting BAME candidates throughout the selection process.
The picture on solicitors in fairly static, despite efforts by senior judges, The Law Society, the JAC and some major firms to encourage and support applications.
The next decade
Despite the JAC’s achievements over the last 10 years, it is in no way complacent. I would like to see greater numbers of diverse, non-traditional candidates joining the judiciary, at all levels. Not only talented candidates from the 4 target groups, but also from academia, the employed Bar, chartered legal executives and government solicitors and barristers.
The work of a JAC Commissioner is both a rewarding privilege and demanding. Since being appointed a Commissioner in 2012 I’ve seen first-hand how the work of the Commission is undertaken by staff and Commissioners alike with conscientiousness and diligence. Merit is never lost sight of and the views of all Commissioners are taken into account and respected.
I am aware that some of my barrister colleagues are wary of, and unfamiliar with, our processes. Many still believe they and the judiciary are the best judges of the likely future generation of judges. In larger competitions the JAC receives large numbers of applications for very few vacancies. I was the assigned Commissioner for a Deputy District Judge (Crime) competition for which we received 1453 applications for 27 places. This would have been impossible to narrow down, to the 100 or so candidates we interviewed, without some test of competence. This was drafted, as all our qualifying tests and scenarios are, by a judge or judges sitting in the relevant jurisdiction.
We are always looking to improve and keen to receive feedback both positive and negative about any aspect of our selection processes. I am happy to be contacted by any prospective applicant about our processes, from what we look for in a self-assessment to the interview process itself.
The JAC is a modern responsive organisation that constantly strives to improve the selection process for judges. Whatever the next 10 years bring, ensuring that selections are fair, made solely on merit and open – to non-traditional candidates in particular – are surely objectives that will continue to underlie the work of the JAC.
Martin Forde QC is a JAC Commissioner and the barrister member of the JAC. He took silk in 2006 and was appointed Recorder of the Crown Court in 2009. He is the South Eastern Circuit Diversity Mentor and Chair of the South Eastern Circuit Minorities Committee.