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Judicial appointments: the concerns remain

16 July 18

Did the chair of the Judicial Appointments Board for Scotland make a convincing case for the Board’s selection processes in her Journal interview last month? One solicitor thinks not

by Douglas Thomson

May I make a few observations on the content of the interview with the head of the Judicial Appointments Board at Journal, June 2018, 12?

It was interesting to learn that the person tasked with heading the body appointing judges in courts appears to have had no meaningful involvement whatsoever with the court system prior to appointment, and at an early stage expresses pride in the Board’s information management system, rather than on the enhanced quality of judicial ability demonstrated by the persons appointed. While the key question is identified, namely “What makes a good judge?”, a number of her assertions might be considered surprising within the profession.

In her view it is appropriate for professionals seeking appointment to a role that, in its initial stages, will inevitably involve sitting as sole decision-maker, to seek the “support” of professional organisations or colleagues. Needless to say no evidence is offered that this will enhance the quality of applicants as opposed to applications. The Board is comfortable that in respect of self-reporting it can appropriately test “credibility”. When appointing persons to make decisions that may affect every aspect of an individual’s life I, and I suspect many others, would be happier to know that something more than the quality of being convincing or believable is required.

The attrition rate of 88% based on the written self-assessment referred to by the writer of the article at Journal, February 2018, 18 is ignored, as is the issue of English-style written tests of legal knowledge. Instead, she states that the Board gives candidates “scenarios and say what would you do”, omitting any comment on the fact that only 12% of applicants reach this stage. The chair states that “the dialogue with the profession is really important to us”. I am prepared to stand corrected, but I am not aware of my local faculty ever being invited to make representations to the Board or having a member of the Board attend for discussion.

Having identified that the key to the Board retaining the respect of the profession is the appointment of good judges, there seems to be little recognition that issues of poor temperament and lack of suitability for office have been raised in respect of a number of recent appointments. This surely must be a greater concern than appears from the rather bland comments. Surely it remains essential that persons appointed hold the respect of the bench and bar before whom they appear, and have been able to demonstrate a judicial temperament and ability to deal appropriately with court users before, rather than after appointment?

I should perhaps concede that I have been interviewed for judicial office, but found my experience at odds with the aspirational words here.

The legal profession in this country deserves more than the series of clichés (“bring something to the party”, “putting their best foot forward”) and absurd metaphors (one does not “look across” a number of yardsticks – they are a measuring tool) presented here. It is perhaps fortunate that I am closer to the end than the beginning of my career, as my confidence for the future of the law and the legal profession diminishes daily.

Douglas Thomson, solicitor advocate, is a consultant with McArthur Stanton, Dumbarton.

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