2.1 This chapter reports on progress of a number of new and continuing initiatives concerning judicial appointments during 2002-2003.
2.2 The department also continues to consider the effects of the recommendations of the separate reviews by Sir Andrew Leggatt and Lord Justice Auld into the tribunals and criminal courts systems respectively and to look at their possible future effects on judicial appointments. Progress on these matters is covered later in this chapter.
The Commission for Judicial Appointments
2.3 The Commission for Judicial Appointments was established in March 2001 with the appointment of Sir Colin Campbell as First Commissioner. Last year's annual report recorded the appointment of seven additional commissioners to assist Sir Colin in auditing the judicial appointments and Queen's Counsel procedures and investigating complaints about the way those procedures had been applied in individual cases. It was not necessary to appoint any further commissioners during 2002-2003.
2.4 The commissioners published their first annual report on 7 October 2002. They found that the requirement to make judicial appointments entirely on merit was unquestioned, and that any investigation of complaints must be viewed against the "remarkable record of the judiciary in England and Wales" .
2.5 In the period covered by the commissioners' first annual report, ten individuals had made formal complaints, from well over 3,000 unsuccessful applicants for judicial appointment or Queen's Counsel. Of those, four were upheld and six were rejected by the commission. The four complaints (three of which related to the 2001 Queen's Counsel competition) were upheld on the basis of procedural and administrative failings which did not go to the merits of any particular substantive decision. The commissioners also identified several issues for review, including the role of consultation, whether the judicial appointments system did enough to promote diversity, the appointment of High Court judges, and whether judicial appointments and awarding of Queen's Counsel status should continue to be made by a government minister.
2.6 Lord Irvine welcomed the commissioners' report. He expressed his gratitude to Sir Colin and his colleagues for the rigour with which they had met his aim of having a continuing, independent mechanism for the assessment of the appointments system and the investigation of complaints. He explained that Sir Colin had identified some areas of concern about important aspects of the system, some of which had already been addressed.
2.7 The department has continued to act on the commission's recommendations and observations. Action taken has included improving the internal guidance on the setting of criteria for competitions to ensure greater clarity for panels, amending guidance to sifting and interviewing panels, and improvements to the forms.
2.8 Between its establishment in March 2001 and the end of March 2003, the commission referred a total of 19 complaints to the department for response. The commissioners' annual reports can be found on their website at www.cja.gov.uk.
2.9 During 2002-2003 the commissioners commenced their first three audits of appointment competitions. These covered:
2.10 The commissioners presented their report on the deputy district judge and deputy Queen's Bench masters competitions to Lord Irvine in April 2003. The report on the part-time chairmen of the VAT and duties tribunal competition was presented to Lord Irvine in May 2003. Whilst offering some observations as to how the process might be further improved, both reports were very positive and they were welcomed by Lord Irvine and Lord Falconer respectively. The audit report on the 2003 Queen's Counsel competition had not been sent to Lord Falconer at the time of writing this report.
2.11 Work has continued on developing and maintaining an effective and appropriate relationship between the department and the commission. In the early months of their appointments the commissioners met departmental officials to familiarise themselves with the appointment procedures and some of the issues arising from them. Positive and productive liaison between the commission and the department at various levels continued throughout 2002-2003.
2.12 Contact details for the commission are:
The Commission for Judicial Appointments
7th Floor
Millbank Tower
Millbank
London SW1P 4QU
Tel: 020 7217 4470
Fax: 020 7217 4262
email
website: www.cja.gov.uk
Pilot Assessment Centre
2.13 In his 1999 report entitled An Independent Scrutiny of Judicial Appointments and Silk (available at www.dca.gov.uk), Sir Leonard Peach recommended that a one-day assessment centre approach to selection should be piloted for judicial appointments.
2.14 The then Lord Chancellor decided that the 2002 competitions for the posts of deputy district judge (civil), deputy district judge (magistrates' courts) and deputy Queen's Bench master should be used for the pilot. 846 applications were received for these three competitions and 189 applicants attended the assessment centre to fill 71 posts.
2.15 Assessment centre activities were designed by experienced district judges, officials from the department and consultants with expertise in development of assessment centres, in part, to simulate the work in each jurisdiction for each of the three pilot competitions. The assessment day for each applicant included a written exercise, a written technical paper, practical (role-play) exercises and an interview.
2.16 Each assessor panel comprised four assessors a chairperson from the department, two district judges from the appropriate jurisdiction and a lay person. All assessors received comprehensive training, based on the case studies and other material used at the assessment centre. Training included the requirement for the rating sheets to be completed systematically. The behaviours exhibited (or not exhibited) by applicants during the exercises were observed by assessors and matched against the competences in the relevant competence framework. Details of the competence frameworks are at Annex A.
2.17 The interviews, lasting about 40 minutes each, were conducted by the representative from the department and one of the district judges. The practical exercises involved applicants assuming the role of a deputy district judge to hear 2 3 cases (depending on the competition concerned) in a room set up like a courtroom or chambers. The applicants were given a specified amount of time to read, digest and prepare for the hearings. The parties were played by professional role-players who were given a comprehensive background brief about the cases and the character type/behaviours required. The role-players were also experienced in 'responding' appropriately to the way the case was being handled by the applicant. A district judge and the lay assessor observed each role-play to assess the applicant against some of the competences set out in the competence framework. Each role-play was assessed separately in other words performance in one of the role-plays had no bearing on the assessment of the other role-plays.
2.18 In addition, there were two written papers. The first was an exercise where the details and circumstances of two cases had to be analysed from a legal standpoint, attaching appropriate weight to factors/statements/allegations where appropriate. The other was a technical paper to test the relevant legal knowledge and experience.
2.19 One full day was devoted to observing the applicants. On the following day, and with the applicants absent, the assessors discussed each applicant's performance against the competences, marked the written exercise and technical paper and reached a final rating by reviewing the ratings from all exercises. A detailed and methodical discussion of each applicant to reach a decision on an applicant's suitability for appointment was a key component of the process.
2.20 The Group's own evaluation of the pilot competitions, which recommended continuation of the assessment centre approach to select deputy district judges, included a detailed statistical analysis of the results according to gender and ethnic origin. The table below shows that the percentage of women appointed was significantly higher than the percentage of applications. The percentage of minority ethnic origin appointments was at or above the percentage of applications.
2.21 The audit of the pilot by the Commissioners for Judicial Appointments was also very positive. The commissioners formed a favourable impression of the assessment centres and the quality and commitment of those involved in the assessment process. Overall, the commissioners welcomed the competency-based assessment centre approach and found that those assessing applicants had a wider range of information on which to make selection decisions.
2.22 The Lord Chancellor has decided that assessment centres will be used for future deputy district judge competitions. However, assessment centres are substantially more expensive than the more traditional interview method of selection and the department will continue to evaluate the effectiveness and costs involved.
Appraisal
2.23 Last year's report contained information about the appraisal scheme for deputy district judges. A pilot scheme was introduced on the Wales and Chester Circuit in November 1999 and on the North Eastern Circuit in October 2000. It was introduced on the remaining circuits in January 2002. There are fundamental principles on which appraisal schemes are based. The independence of judiciary is paramount. The aim of any appraisal of the judiciary is not to question judicial decisions, but to consider, positively and constructively, the judge's approach to, and handling of, the case. Appraisal must be by judges for judges and the purpose of appraisal is to improve performance, realise potential and assist in mentoring, development and training. Appraisal may also play a role in helping to assess suitability for full-time judicial office.
2.24 A number of appraisal schemes for judicial office-holders are already in place. These have been developed by judges and this practice will continue. The group's role is to facilitate the development of systems, particularly through identifying and sharing good practice.
2.25 The appraisal scheme for deputy district judges (civil), which is running throughout England and Wales, has been developed further by the judiciary to reflect the competences developed for the pilot assessment centre. A well-structured scheme has been in existence in the Appeals Service for some time and a scheme was introduced during 2002-2003 for part-time immigration adjudicators in the Immigration Appeals Authority. The senior district judge (magistrates courts) is developing an appraisal scheme building on the one already in place for deputy district judges in the magistrates courts.
2.26 The Judicial Studies Board is working jointly with the Council on Tribunals to develop common standards for competence based appraisal in tribunals and various schemes are running in a number of areas and are being developed in others.
Judicial appointments for the Government Legal Service, Crown Prosecution Service and Serious Fraud Office Lawyers
2.27 Following a report of an inter-agency working group published in June 2002, Lord Irvine, as part of his aim to increase the diversity of the pool from which judges are drawn and to reduce to a minimum the barriers to appointment, reviewed the eligibility for judicial appointment of Government Legal Service (GLS), Crown Prosecution Service (CPS) and Serious Fraud Office (SFO) lawyers. Under the previous arrangements these lawyers were eligible to apply for appointments in jurisdictions where the State was not habitually a party. Following discussion with the judiciary and the Attorney General, Lord Irvine announced on 3 June 2003 that this was to be broadened so that:
2.28 Lord Irvine also decided to develop detailed arrangements that would allow GLS/CPS/SFO lawyers who hold part-time judicial appointments in tribunals, to apply to sit full-time in another jurisdiction, for example, as a circuit judge. Work had yet to begin to fully develop these proposals at the time of writing.
General improvements to judicial appointments procedures
2.29 Improvements to the procedures have been made both as a result of internal scrutiny, and recommendations of the Commission for Judicial Appointments. In addition to the assessment centre pilot, the department is continually looking for ways to improve the processes in order to ensure applicants are treated fairly, consistently and efficiently, and to ensure a proper audit trail for decisions.
2.30 In March 2003 a small project team was set up to review the appointments process, building on the programme of improvements already in place. A number of practical recommendations were made for immediate improvement in the efficiency and customer focus of appointments. These include having a consistency of approach to all procedures and information given to candidates, and making better use of technology.
2.31 The review reinforced and prioritised many of the issues already identified. Other improvements introduced include:
Diversity
2.32 The Joint Working Party on Equal Opportunities continues to meet and assist in the organisation of events on judicial appointments. The working party met the Commissioners for Judicial Appointments on 20 March 2003. The career progression scheme, referred to in last year's report, has been introduced for all fee-paid judicial appointments where a legal qualification is required. The work shadowing scheme, whereby lawyers who are interested in judicial appointment can shadow a circuit judge or district judge (civil), continues to attract a large number of applications (see paragraphs 12.15 12.17).
2.33 Information and full statistics about the work shadowing scheme are produced in this report in chapter 12 and are available on the department's website at www.dca.gov.uk.
2.34 Following representations made by the Group for Solicitors with Disabilities (GSD), the advertisements and statements about equal opportunities in judicial appointments have been amended. The statement was felt by the GSD to show a lack of care and concern towards potential applicants with disabilities, and had been discouraging some lawyers from applying. Advice was sought to ensure that the appointments process is as encouraging as possible towards candidates with disabilities and to remove real and perceived barriers to appointment.
Judicial appointment events
2.35 Officials from this department have continued to attend a number of events to provide information about the judicial appointments system. The purpose has been to explain openly the appointments process and to encourage people to apply, particularly those groups who are currently under-represented in the judiciary. Events attended in 2002-2003 were:17 April 2002 Law Society, London, for barristers and solicitors9 May 2002 Justices Clerks Conference, Cardiff14 May 2002 Law Society, Birmingham, for local barristers and solicitors25 May 2002 Woman Lawyer Forum, London, for barristers and solicitors19 June 2002 North Wales & Chester Association of Women Solicitors, Merseyside, for local barristers and solicitors27 September 2002 Solicitors Conference, Manchester28 September 2002 Bar Conference, London4 November 2002 Employed Bar Association, London3 December 2002 Association of Women Solicitors, Birmingham.Officials continue to participate as members of the organising committees of both the Minority Lawyers' Conference and the Woman Lawyer Forum.
2.36 Presentations for each event were similar, but tailored for different audiences. The April event in London and the May meeting in Birmingham were both arranged in partnership with the Law Society and the Equal Opportunities Unit of the Bar Council. Both these events were presented by the Baroness Scotland of Ashtal QC, then a Parliamentary Secretary at the Lord Chancellor's Department, and were very well attended. With the exceptions of the Solicitors and Bar conferences, the other events were led by senior officials who gave information about the appointments system and answered specific queries from those attending. There were also booklets, leaflets and application packs available. In most cases officials also had excellent support from members of the judiciary, both senior and relatively new appointees, who made themselves available to share with delegates, informally, their experiences of life on the bench. The success of these events derives in a large part from this important participation. Delegates were asked to complete an evaluation questionnaire and responses will assist the future planning of events.
2.37 Some events were on a much smaller scale and had fewer attendees, but were of equal importance in ensuring that delegates received information and had the opportunity to raise queries about the appointment procedures. "Women and Public Appointments"
2.38 Any individuals or groups who would be interested in events or meetings in their area, including on a smaller scale for a firm or a set of chambers, are invited to contact Legal and Judicial Services Group on 020 7217 4825.
Seminars
2.39 Last year's report (paragraph 2.26) explained the background to the department's involvement in a series of seminars organised by the Cabinet Office, aimed at increasing diversity in public appointments. Officials have attended a further four seminars between June 2002 and November 2002 in Canterbury, London (two) and Leicester. Baroness Scotland, addressed the seminar in Leicester. Although the lay appointments handled by the department are not strictly public appointments, many delegates who attended these seminars expressed interest in applying for lay tribunal posts and to the lay magistracy.
Statistics diversity and projections
2.40 Figures for appointments in 2002-2003 show that the proportion of women appointed fell from 34% in 20012002 to 31% this year. There could be many reasons for this slight reduction, but it is likely that the suspension of the main circuit bench and recorder competitions, where women performed well in 20012002, has had an impact. The proportion of minority ethnic appointments rose in 2002-2003 for the third consecutive year. It now stands at 8.9%, which is more than double the figure in 19992000, when minority ethnic appointments accounted for 4.2% of total appointments.
2.41 The majority of appointments in 2002-2003 were lawyer judicial appointments that is appointments from among barrister, solicitor or existing full-time judicial post-holder and it is important to note that the figures provided must be viewed in the context of the make-up of the legal profession at various levels. The tables below show the percentage of women lawyers and lawyers known to be of ethnic minority origin at various levels of the profession 3 . They show the likely pool of candidates for judicial appointment, but they also include those who may not be eligible or interested in appointment.
2.42 Of the total number of appointments made through open competition in 2002-2003, 478 were lawyer judicial appointments. The average length of experience of those appointed was 23 years. The proportion of women lawyers/women full-time judicial post-holders appointed was 27% (127 appointments), and although this is a reduction on 20012002, it still compares favourably with the proportion of women lawyers in the relevant range.
2.43 The proportion of lawyers/full-time judicial post-holders known to be of minority ethnic origin who were appointed was 6.5% (31), and this is similar to the make-up of the legal profession at the levels where lawyers would be expected to apply for appointment. 4
Projections of future appointments
2.44 The proportion of women appointed as deputy district judge has increased by 3% compared to last year's figures and has already met the projected figure for 2005. The proportion of female recorder appointments fell to 13% from the previous figure of 20%. This may reflect the low number of women who applied to be considered for this competition (18% of the 589 applications received). Of the 376 interviews held, women made up only 16%. Similarly, a low number of women applied for the Queen's Counsel competition and district judge competition, which may explain that they represent only 7% of appointments in each. Of the 394 applications received for the Queen's Counsel competition, women made up only 10%. Only 21% of the 241 applications received for the district judge competition were from women, and they made up only 19% of the 81 interviews held. These figures are disappointing and they highlight that more needs to be done to encourage applications from women. It is, however, interesting that of the competitions cited, the highest percentage of female applicants was for the post of deputy district judge, the only competition where an assessment centre was used to aid the appointment process.
2.45 The figures for the minority ethnic appointments in the deputy district judge, recorder and Queen's Counsel competitions are more encouraging. The number of minority ethnic appointments for the deputy district judge (civil) competition has increased to 10% compared to last year's figure of 5%. Only the Queen's Counsel competition has yet to exceed the projections for 2005.
Age Limits
2.46 Last year's annual report provided information about the Lord Chancellor's change to the policy on age limits in particular that the upper and lower age limits were removed for judicial offices where a legal qualification is required. This change in policy applied to the competitions for deputy district judge (civil) and deputy district judge (magistrates' courts). Five (out of a total of 42) of those appointed as deputy district judges were younger than the age limit of 35 that had applied previously, and three (out of a total of 27) of those appointed as deputy district judges (magistrates' courts) were younger than the age limit of 38 that had applied previously. Of the total of eight, four were female and two were of minority ethnic origin.
Consultation on selection procedures for circuit bench and recordership
2.47 In February 2002 the department suspended its regular competitions for appointment to the circuit bench and as a recorder to allow for consultation on the appointment procedures for these posts. A consultation paper was issued on 10 April 2002 with a closing date of 5 July. This was extended to October to allow further material to be submitted.
2.48 Issues covered by the consultation were:
2.49 Vacancies that arose during the suspension were filled from reserve lists created following the 2002-2003 competitions. During the suspension period the department also used the opportunity to review its priorities and procedures, including the competition timetables and processes for all competitions. Working groups were set up to examine the procedures for consultation, sifting, interviewing, IT enabling, planning, training needs and communication and information.
2.50 The comments from the public consultation and the findings of the working groups were considered together in formulating future competition timetables and procedures. The response to the consultation paper was published on 17 March 2003. This announced details of the proposals and dates for the re-launch of competitions on a rolling programme. The new programmes should shorten the time from application to result. Each circuit or batch of circuits will be considered in turn, with applicants given the option to be considered for other circuits later in the cycle, if they meet the required standard but are not offered an immediate appointment.
2.51 The new style circuit bench competition was launched in April and for recorders in July. Careful consideration was given to the procedures for consulting on candidates. At this stage the Lord Chancellor is intending to continue with the consultation system. The consultation paper on a new Judicial Appointments Commission (see paragraph 1.4) proposes that a commission would take responsibility for the running of the appointments process. Whether it continues with a consultation-based system would therefore be a matter for a commission.
Tribunals and the Leggatt review
2.52 Last year's report (paragraphs 2.35 and 2.36) explained the background to the appointment of Sir Andrew Leggatt to head a review of tribunals.
2.53 Sir Andrew published his report in August 2001. In short, he recommended that the independence of tribunals was best safeguarded by having their administrative support provided by the Lord Chancellor's Department. Following a period of consultation, the government announced in March 2003 its proposals for the establishment of a unified Tribunals Service. Initially the service will comprise those tribunals already part of the DCA, together with the five largest non-devolved tribunals 5 . A White Paper, detailing these proposals and other reforms of the tribunal justice system, will follow later in the year.