The goal of the Judicial Appointments Commission - led by Baroness Usha Prashar - was to create a fairer recruitment process for the judiciary. But has much changed? Anita Rice reports


The creation of the Judicial Appointments Commission (JAC) in April last year was, in the words of its chairwoman, Baroness Usha Prashar, ‘nothing short of a quiet revolution’.



Secret soundings and a tap on the shoulder signalling that judicial office beckoned were consigned to history. The JAC was charged with creating new selection processes where prospective members of the judiciary actually applied for positions – a development many observers believed to be long overdue. The recruitment process was to be transparent and the JAC legally required to pay due regard to equality and diversity issues.



A revolution it may be, but given the amount of criticism the commission has attracted during the past year, you cannot help but suspect it has not been anywhere near as quiet as Baroness Prashar may have preferred.



At a recent constitutional affairs select committee meeting, MPs heard a string of complaints ranging from the time taken to appoint – sometimes 18 months – to ongoing concerns that solicitors, and thus the majority of female and black and minority ethnic (BME) applicants, were disadvantaged compared to barristers. The JAC was also given a ticking off by MPs for failing to provide statistics as requested.



All in all, it has been a pretty tumultuous first year of life for the JAC, not helped by operating under the threat of relocation out of London for the first six months of its existence – making it impossible to recruit staff. Relocation is off the agenda – for now.



Despite all of this, Baroness Prashar is determinedly upbeat, saying: ‘I am not sure I would describe the last year as tumultuous.’ Albeit with the benefit of hindsight, is there anything she would have done differently?



‘We would not have done anything differently. I am proud of the fact that within a year we established our own criteria for what makes a good judge and implemented new processes. We persuaded the Department for Constitutional Affairs (DCA), now the Ministry of Justice (MoJ), that relocation within two years was not a practical proposition,’ she says.



‘We undertook an enormous amount of work to raise the profile of the JAC, in particular among solicitors, minorities and women… I think our strategy for the first year was the right one and we have achieved what we aimed to do, which was to lay the foundations on which to build the JAC.’



There is more than just a little frustration in the chairwoman’s reply to this question. Perhaps hinting that the commission has not been granted an overly generous honeymoon period, Baroness Prashar adds: ‘I think some of the criticism we are getting is based on the old system.’ She observes that the JAC established ‘a new organisation without any shadow working, managing a transitional period, dealing with uncertainty, particularly with relation to relocation, and at the same time developing our own selection processes and criteria and all that was required to implement the intentions of the 2005 Constitutional Reform Act’.



Undoubtedly a tall order, but senior voices within the judiciary itself are now making noises about a shortfall in judges across the country. The Lord Chief Justice, Lord Phillips of Worth Matravers, and the President of the Family Division, Sir Mark Potter, have expressed dismay about the number of unfilled vacancies, the latter going so far as to blame the JAC for being too slow in recruitment.



The commission, in its latest annual report, says it ran a total of 38 exercises during 2006/07 in connection with around 1,000 vacancies. Seven have been completed, 21 were still under way, and a further ten inherited and run under old DCA processes. As of 31 March 2007, following the seven completed exercises, the JAC made 58 recommendations for 62 posts. The names of 30 applicants from pre-JAC reserve lists were also put forward in relation to 18 vacancies, and two appointments to the Court of Appeal were made.



By anyone’s reckoning, that leaves a substantial number of vacancies still to be filled. Given many applicants could be facing a serious cut in earnings – particularly high-flying commercial lawyers – is there a dearth of quality candidates?



Baroness Prashar says not, claiming there has been a steady increase in applications. She goes on to point out that the JAC was forced to adjust its recruitment programme to accommodate additional, unforeseen recruitment exercises requested by the MoJ.



Appointing on merit is something of a mantra at the JAC, which is keen to avoid any perception, both within the profession and the general public, of a decline in recruitment standards. ‘It is important the message goes out that we want to maintain high standards and enhance high standards. We are rigorous in our assessments,’ says Baroness Prashar.



However, she acknowledges that progress with minority appointments has been ‘slow’, but says this is because the profession itself is not diverse enough.



She points to City diversity tables published by the Black Solicitors Network this summer, showing that 20% of top UK law firms participating in the survey had no BME partners. Some 80% of respondents said they did not have a single African/Caribbean partner. ‘If you are looking to top law firms, there are not very many people from BME backgrounds. We can only fish from the pool that is available,’ she says.



When quizzed about employing positive action measures, Baroness Prashar insists they already are: ‘We are targeting and analysing every exercise. We are committed to identifying barriers and addressing them, so to me that is positive action… If you know where and what the bars are, you will take steps to deal with it in partnership with others.’



Yet the perception that solicitors are at a disadvantage compared to barristers persists. Alexandra Marks, a partner at Linklaters and former chairwoman of the Law Society’s law reform board, recently said some progress had been made in appointing solicitors, but only at relatively junior district and deputy district judge levels. She claimed there had been no progress at recorder level, traditionally regarded as the key stepping stone to senior judicial appointment. ‘The Law Society greatly welcomed the creation of JAC as an opportunity to sweep away the old procedures,’ says Ms Marks, ‘but, particularly with the long-held view that solicitors are at a disadvantage, it has been something of a missed opportunity.’



Recently, the Law Society itself wrote to the MoJ, expressing concerns that published eligibility criteria for senior circuit judge posts appeared to exclude applications from masters and district judges – the only judicial categories where solicitors outnumber barristers (see [2007] Gazette, 16 August, 1). As comparatively high numbers of masters and district judges are women (22%) or from BME backgrounds (3.1%), Law Society chief executive Des Hudson noted that exclusion of these categories could undermine moves to promote diversity.



Baroness Prashar says solicitors may have been disadvantaged in the past but no longer: ‘Our current qualities and abilities are more about judgecraft as opposed to advocacy. Before, there was a view that you had to be an advocate to be a judge.’ She reckons they could be discouraged from applying for fear that it would be viewed as disloyal or reducing fee-earning ability by senior partners.



As for directing solicitors to the most junior of judicial appointments, Baroness Prashar bristles, saying ‘I do not know who is doing the channelling’, but she concedes: ‘It is fair to say that, at the moment, there is a perception that solicitors are going to the district bench and the bar to either the circuit bench or High Court.’



She repeats that mantra – ‘ we are looking for merit wherever it can be found’ – and confidently states change is beginning to take hold. There are already signs, she says, that district judges are moving up to the circuit bench.



Year two for the JAC will see a much more targeted approach to recruitment, with more outreach work. ‘My message to solicitors would be… take the time and trouble to see how things have changed, look at our website and talk to our staff. If you are from a group or interested party, invite us to come and speak. [Solicitors] should approach this with a clear and fresh mind rather than with preconceived ideas,’ she says.



At this point, the Baroness betrays a little frustration once more, pointing out that the JAC cannot make the judiciary more representative in isolation: ‘I would like a much more constructive dialogue with the Law Society, the Bar Council and others on this so that we can have a responsible discussion about the barriers, rather than one blaming the other. This is a joint venture and co-operation to deal with these bars is essential.’



More change is on the horizon with the launch of the government’s Governance of Britain consultation paper – proposing to review the Lord Chancellor’s role in judicial appointments. Moves are also afoot to streamline the selection process, something Baroness Prashar acknowledges is currently viewed as ‘over-engineered’.



You would forgive her some reluctance to take on yet more reform, but Baroness Prashar is enthusiastic about the chance to revisit issues. ‘Anything that raises public awareness of what is being done to protect the independence of the judiciary and increase diversity we see as a good thing… I am not afraid of change. If it is change for the better, we embrace it. We will rise to the challenge,’ she says.



One thing is certain, the JAC will be ever more closely scrutinised to ensure it does.

l The JAC has launched a new round of free roadshows aimed at new applicants and existing office holders looking to move up the judicial ladder. Details at: www.judicialappointments.gov.uk.





Baroness Usha Prashar



Usha Prashar was born in Kenya in 1948 and educated at Wakefield Girls High School and the universities of Leeds and Glasgow. Formerly director of the National Council for Voluntary Organisations and director of the Runnymede Trust, she has served as a member of the Royal Commission on Criminal Justice.



She had a short period as a member of the old Solicitors Complaints Bureau and spent six years in the 1990s on the former Lord Chancellor’s advisory committee on legal education and conduct. In 2003, she chaired a group reviewing the Law Society’s governance structure.



She was awarded a CBE in 1994 and since 1999 has sat in the House of Lords as a crossbencher.



She was the First Civil Service Commissioner between 2000 and 2005, having served three years as executive chairwoman of the Parole Board for England and Wales.