The Judicial Appointments Commission seeks to widen opportunities for practitioners, reports Anita Rice



At a Judicial Appointments Commission (JAC) roadshow held in London late last year, attendees interested in a career in the judiciary were asked to list any barriers they believed could hold them back from becoming a judge. First up came this: ‘Barristers are more likely to be appointed than solicitors.’



The notion that solicitors are disadvantaged in comparison to barristers when seeking judicial appointment is something the JAC, since its creation back in April 2006, has been at pains to dispel as a myth.



Speaking to the Gazette last year, JAC chairwoman Baroness Usha Prashar repeatedly underlined that the commission is ‘looking for merit wherever it can be found’. The qualities it seeks are ‘more about judgecraft as opposed to advocacy. Before, there was a view that you had to be an advocate to be a judge’.



Another long-held view among solicitors is that while they may have a good chance of appointment to tribunals and the like, they are still seriously disadvantaged in respect of posts considered to lead on to more senior appointments.



Back in August, the commission came under fire from the Law Society after it appeared to exclude applications from masters and district judges for senior circuit judge posts – despite those being the only judicial categories where solicitors outnumber barristers.



As comparatively high numbers of masters and district judges are women (22%) or from minority backgrounds (3.1%), Law Society chief executive Des Hudson noted that exclusion of these categories could also undermine the JAC’s commitment to promote diversity.



And at the JAC roadshow, the question on most people’s lips concerned the timing of the next recorder competition and how solicitors could expect to fare. A recorder position is widely regarded as the key stepping-stone to senior appointment and previously, it is fair to say, solicitors have been infrequently appointed.



The JAC has responded robustly to these charges in recent months. Delegates at the roadshow were assured that solicitor applicants who meet the selection criteria will not be disadvantaged. Earlier last year, Baroness Prashar hit back at suggestions that solicitors would continue to find appointment at recorder level more difficult, and claimed many of the most experienced solicitors may feel unable to apply for fear that senior partners would regard it as disloyal or reducing fee-earning capacity.



As for channelling solicitors into the more junior ranks of the judiciary, Baroness Prashar said: ‘I do not know who is doing the channelling’, but conceded: ‘There is a perception that solicitors are going to the district bench, and the bar to either the circuit bench or the High Court.’



It is undeniable that the JAC has set out to spread the word among well-qualified solicitors that they are on an equal footing with barristers when it comes to judicial appointments. It is equally undeniable, however, that the statistics appear to tell a different story.



As of April 2007 only 104 of a total of 1,201 recorders in England and Wales were solicitors. Following the last recorder competition in 2005, a total of 46 appointments were made; only five were solicitors.



This month, the JAC got its chance to put its new recruitment processes to the test as it launched its first recorder competition (see [2008] Gazette,10 January, 5).



Alexandra Marks, a partner at Linklaters, recorder and member of the JAC’s newly-formed recorder advisory group, has been fiercely critical of judicial appointment processes in the past – noting that recruitment exercises can last as long as two years, and issues surround how, and crucially when, referees are selected and contacted.



She tells the Gazette that the JAC has consulted extensively across both branches of the profession, and she is cautiously optimistic that improvements have been made and will be made to its recruitment processes that will continue to identify the best candidates but level the playing field for appropriately skilled solicitors.



The introduction of a new qualifying test that assesses individual candidates’ responses to the types of situations judges frequently have to deal with, rather than solely test standard or specific advocacy or court experience, has been particularly welcomed by Ms Marks as a ‘very positive development’. She also points out that the new tests have been tried out by Law Society guinea pigs at various ‘dry-runs’ and were devised after extensive consultation with judges, JAC members, and representatives of both the Law Society and the Bar Council.



Law Society President Andrew Holroyd says: ‘We are working with the JAC to ensure that solicitors are aware of opportunities to seek judicial appointments and we hope that many eligible solicitors will apply. It is essential that all candidates are confident that they will not be disadvantaged by the appointment procedures in place, just as it is vital to encourage qualified candidates from all backgrounds and parts of the legal professions to apply for judicial appointment in order to address the under-representation of solicitors in the judiciary. An increase in the number of solicitor applications to become judges will greatly assist in improving diversity in the judiciary, which will help improve public trust in the legal system.’



Ms Marks observes that it has been difficult to assess the JAC’s performance on recruitment because this is the JAC’s first foray into a large-scale senior appointment exercise. ‘It will be an interesting test of how well, or otherwise, the JAC attracts and – for me this is the acid test – recommends diverse applicants.



‘Under previous processes, diverse candidates have applied before and failed, which has proved to be counter-productive. Having these new processes and events like the roadshows… it is possible people will have a clearer picture of what the job involves and, therefore, the pool of applicants will be more focused on the skills and competencies needed to do the job.’



It is quite a complex picture, the solicitor admits, and the task facing the JAC is two-fold. ‘There are still weaknesses in the current system,’ Ms Marks says, ‘but turning round this tanker of cultural perception is very hard.’



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