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The JAB: how it works

20 June 05

Reply to Alistair Bonnington's Opinion article in the May 2005 Journal

by Lord MacLean, Alan Paterson

The attack on the composition and operation of the Judicial Appointments Board by Alastair Bonnington affords us the opportunity to explain how and why the Board operates as it does.

The role of the Board

The then Justice Minister made it clear in announcing the creation of the Board in 2001 that he was seeking to reform a system of judicial appointment which was widely viewed as lacking in transparency and perceived equity. In establishing an independent JAB with a lay chair and 50% lay:legal split, the Executive was not only addressing the perceived weaknesses of the old system but also demonstrating its commitment to greater openness in the way all public appointments are made – the Nolan principles. The Board, it was made clear, should be committed first and foremost to appointment on merit, but also to transparency and fairness and the need to recruit a judiciary which was as representative as possible of society. “Merit” for the Board’s purposes has effectively been defined by the list of competencies for judicial candidates provided by the Judicial Studies Committee.

Why lay members?

Why did the Executive put lay members on the Board? First, it said, to ensure that the candidates appointed by the Board were in touch with the whole community, and seen to be so. Next, to instil public confidence in the new procedure, since they detected a real public concern that a Board dominated by lawyers might not be sufficiently well-balanced. Thirdly, to assist the legal members of the Board in assessing the “non-legal” competencies expected of judges: integrity, honesty, intellectual capacity and sound judgment, management skills, communication skills, and ability to deal with people fairly and courteously. In the Executive’s eyes it did not require a legal training to assess these skills. Indeed, laypersons with wide experience in public and business life, including modern selection methods, were thought to provide a valuable complement to the knowledge and experience of the legal members of the Board. So it has proved. Moreover, in Sir Neil McIntosh the Board has an excellent chair, ideally fit for purpose. A man of vast experience in local government, in particular in the fields of personnel and recruitment, his wise counsel and quiet diplomacy have harnessed effectively and harmoniously the talents of all Board members. 

How has the Board operated?

The Board was committed from the start to identifying and adopting best practice in the field of recruitment. Accordingly, it drew on debates in other jurisdictions and the thinking of the Equal Opportunities Commission, the Commission for Racial Equality and the Office of the Commissioner for Public Appointments. From these it was clear that all candidates must be considered on the same basis and that the hardest task facing the Board was to establish a system which would elicit adequate, reliable and verifiable information on every candidate coming before us. Primarily, we rely on detailed, competency based application forms and interviews. The Board, after careful deliberation has eschewed the use of soundings (as opposed to references) from lawyers and judges. First, we consider that taking soundings is unfair in equal opportunities terms. It favours those with the best connections. It is for this reason that the English Law Society withdrew from taking part in soundings for English judicial appointments several years ago. Similarly, the Commissioners for Judicial Appointments in England and Wales have been critical of the use of soundings because of the instances of prejudice and equal opportunities bias which they have found in scrutinising the operation of the system in practice there. Secondly, soundings can elevate what may be little more than hearsay or gossip to the level of knowledge. Thirdly, to resort to secret soundings would be to recreate the potential for the perceived weaknesses of the old appointment system, behind a façade of greater transparency and openness. The Board has preferred instead to rely on the measured comments of referees nominated by the candidates. Nevertheless, the Board continues to keep its procedures under review and monitors evolving ideas of best practice in other jurisdictions.

One last point. In his article Alistair Bonnington asserts that there is widespread disquiet in the profession about the calibre of many of the Board’s selections. We do not believe this is true. Not only do the legal members of the Board have to be satisfied with the legal experience of every recommended candidate, so too does the Lord President. Moreover, a majority of the Board meet with members of the profession constantly and had there been such widespread disquiet we would surely have heard of it. We understand that Alistair Bonnington has since indicated that he was critical of only a very few appointments. We will not quarrel with this amended position. The Board is not infallible and indeed welcomes all constructive criticism.

Lord MacLean is a retiring legal member and Professor

Alan Paterson is a lay member of the Judicial Appointments Board for Scotland