April 3, 2006 was a significant day for the judiciary. Its administration was removed from the Department for Constitutional Affairs and put in the hands of the judges themselves. And on the same day, the new Judicial Appointments Commission took over the responsibility from the department of appointing judges to the bench.
This new body, comprising a large lay element, has the opportunity to take a completely fresh look at judicial appointments, as it will not be bound by the procedures of its predecessor. In doing so it might care to heed the words of Sir Colin Campbell, the head of the Commission for Judicial Appointments, an independent watchdog which has until now been responsible for scrutinising the appointments system (it ceased to exist on April 3).
In the Commission?s final report, published on March 29, Sir Colin highlighted as one of the fundamental flaws of the previous system the so-called "old boy" network. For several years, he has been critical of the extent to which professional references influence the appointment of candidates. There was a tendency in some cases to select judges based on their "clubability" rather than their judicial ability.
This was something the Department for Constitutional Affairs had been aware of and had begun to address. It had begun experimenting with a new process for the selection of judicial candidates: the Assessment Centre, with which I have been involved as an assessor since it was established.
The centre is a purpose-built suite of rooms designed to accommodate the assessment process in the appointment of deputy judges, the entry level point for the judiciary. Stamina is needed by candidates for the day ahead. They will be required to complete various written exercises designed to test their knowledge in the area covered by the appointment. There is also an interview which is not technical but is designed to find out more about the personal and professional background of the candidate.
An interview is conducted by a member of the DCA staff and a full-time judge and is recorded. For some appointments a lay member is also part of the interviewing team. Lastly, and most significantly, the process involves role-plays, observed by a judge and a lay member. These last about 20 minutes each and are frighteningly authentic. Professional actors are used and while the mock hearings are not intended to include technical traps, candidates should nevertheless not expect the hearings to go smoothly! At the end of the day the DCA staff members, lay members and judges get together to compare their marking.
About five or six years ago the DCA engaged the services of a personnel management company to assist them in drawing up the necessary criteria for a deputy judge. These criteria form the backbone of the appointment process. There are 10 criteria: technical knowledge and expertise; managing workload; showing authority; investigating; analysing; resolving and deciding; building relationships; communicating; managing self; and developing knowledge.
Each of the 10 disciplines is divided into several sub-categories. Thus "showing authority" is divided into "identifies and manages hostility by exerting control at the appropriate time; steers an appropriate line between informality and maintaining control; takes charge without intimidating others; is firm when challenged, and asserts authority when necessary; maintains patience to remain courteous and professional; directs parties to concentrate on relevant points and takes a logical path through the facts and key issues". Apart from the multiple choice exercise, which is technical in nature, the criteria dictate most of the basis of on which candidates are assessed.
Where do references stand in all of this? While they may have some influence in selecting candidates for assessment in the first place, the candidate?s own application form is greatly more influential. Once a candidate has passed the centre?s evaluation, the evaluation itself is checked against the references to see if there are any glaring discrepancies.
True, appointments to full-time posts are still heavily dependent on references and an interview. But the new Judicial Appointments Commission has carte blanche to examine all the existing processes and to devise a system for the future that has the confidence of potential candidates, existing judges and the public at large. My colleagues in the judiciary may not agree about the best way of ensuring a system that is open and effective at securing the right people for the right post, but they would no doubt welcome a fresh look at it.