Exclusive: Judicial appointments process under fire for appointing best form fillers
The application process for judicial office in Scotland has been severely criticised as too onerous, a “lottery” and an artificial paperwork exercise that may be no more effective than the ‘tap on the shoulder’ that allowed “useless people” to be appointed in the past.
Last year the Judicial Appointments Board for Scotland commissioned independent research to consult with stakeholders, past applicants and potential applicants to understand their perceptions of the board and how it has been operating.
The research took place over the summer and included 45 qualitative interviews and a quantitative online survey.
While applicants welcomed the replacement of the old ‘tap on the shoulder’ approach to judicial appointments, many felt that it only measures skills in answering competency-based questions which may not necessarily reflect suitability for appointment.
Respondents also said that the existence of training/consultancy in this area undermines the idea that the process is meritocratic or effective and that it does not take into account the level of experience or legal knowledge of applicants.
Some respondents gave specific examples of unexpected or less appropriate appointments being made, such as when someone with no criminal court experience at all was made a sheriff; or when very good part time sheriffs were unsuccessful when applying for a full-time post.
“People appointed are learning on the job, and I don’t think that’s right. It was apparent [a newly-appointed sheriff] did not know one end of a criminal trial from the other… She appeared at a criminal trial court… she said that she was there so as to see what happened in a trial before taking on her role. To me that’s the wrong way of doing it. Her first trial as a job will be her first trial in a court ever,” said an unsuccessful summary sheriff applicant.
Among stakeholders, there was a feeling that, while it is fair and appropriate to have an application process rather than a ‘tap on the shoulder’ system, this has not necessarily resulted in the highest quality candidates being appointed.
One stakeholder expressed scepticism that the new democratic approach to appointment had actually improved the quality of appointees.
“On no view could you justify in the modern world a tap on the shoulder but ironically, has it improved the quality? I don’t know if it has… In the old days, useless people were appointed, and I tell you this literally, because their wives were bridge partners… So that’s gone, no-one feels there’s a prejudice and a bias anymore. It’s just how good the system is at identifying the best people.”
Another stakeholder said: “You get people that have been working in this business for 30 years at the highest level… and it comes down to how well they can fill in a form and do an interview. So there seems to be something not quite right about that, the balance isn’t quite right.”
A third said: “I think they’re losing people through this competency based process… I know from the last recruitment round, speaking to [Sheriffs Principal] each one of them has had someone appointed to their sheriffdom who is completely unsuited to the job.”
However, there was also positive feedback about the process.
A successful summary sheriff applicant said: “[I thought] it’s a bunch of poshos who’ve been to private school… but with it being a competency based interview, that gave me faith that I would have a chance of getting through the tap on the shoulder type of things… That’s why I thought the JABS process was quite fair and that I would stand a good chance.”
A successful sheriff applicant said: “[JABS is] a big improvement. I would not have got the tap on the shoulder… The mere fact JABS exists has encouraged diversity – it encouraged me to apply and I found it a very fair process.”
Respondents suggested that JABS could reduce its focus on competency-based assessment and rebalance it towards content and not processes.
It was also suggested that there be an element of objective testing/examining experience as part of the process, to counter any bias gained by getting training or paying to have applications completed.