Item 2 is evidence from the Judicial Appointments Board for Scotland. Members should have the Scottish Parliament information centre briefing paper, a private paper and the research questionnaire that was commissioned by the board.
We are very grateful for this opportunity to give evidence to the committee. I guess that this is something of an update on the evidence that my predecessor, Sir Neil McIntosh, gave in March last year.
You have identified the main issues that we want to pursue, the first of which relates to the Judiciary and Courts (Scotland) Act 2008. What differences has the passing of that legislation made to the board's operation and what differences do you expect the legislation to make in due course?
Colleagues who have lived with all of this for longer than I have will no doubt want to supplement my response, but I think that the board's statutory status—the enshrining in statute of various provisions related to process and independence—will very much focus our minds on the tasks that face us, including, for example, the duty to appoint on the basis of merit and character; the duty imposed on legal members of the board to examine candidates' knowledge, skills and competence; and the duty to take account of and promote diversity. In other words, the legislation has crisped up the things that we have been doing. As members will hear, we have been responding to our statutory duties by thinking quite carefully about our various processes and the criteria that we use.
Are things bedding in?
Yes. I think that the new board is beginning to work well together following all those changes. We are beginning to have a clear vision of how things will work and how they might be a little different from how they were in the past. As I said, that will be driven by the statutory obligations that we are under.
Good morning. I want to go a small step further by asking whether there are any concerns about getting hold of the resources that the board needs. You put the point very diplomatically about being in discussions with the Government, but clearly the board will not be able to do the job well—no matter how well it might have been set up—if it is not properly resourced. I think that we recognise that we need that job to be done well. Is resourcing an issue?
I do not think that that is an issue at the moment. The statute provides that the Government should provide, or secure the provision of, the resources that we need. We have discussed our need for premises, which have now been organised. We have also discussed our need for access to IT in a way that keeps us clearly distinguished from the Government. Underpinning all of that is our need for budget resource to support a slightly larger staff complement.
I get the impression that you are comfortable with your current allocation.
Yes, I think that I can say that.
Yes.
Chris Orman is really the person who understands those details.
I am happy to hear that answer.
Does Ms MacArthur have anything to add at this stage?
No, I have nothing to add to what the chair has said so far.
Would Mr Martin also adopt the previous arguments?
Yes, I certainly would.
That is a very apposite response, given that we now turn to the appointments that the board has agreed, which are required under the legislation to be totally reliant on merit. Bill Butler will open the questioning.
Good morning, colleagues. How satisfied are you that the most able candidates are being appointed to judicial office in Scotland? Can you state your reasons for your view about the appointments procedure?
You will realise that I am new to the board, and that what I said about the process did not refer to my involvement in the interview process for particular appointments. When I look at the process, I see something that has encouraged the best people to apply and in which evidence about and references for those people have been taken. I see a fairly serious process, which generally involves two stages: sifting and interviewing. I do not really have any substantive comment to make beyond the fact that it seems to me that the board has made a good start on its process over the past six years. I think that that is the general view of most commentators, most of the time. It would be unwise for me to go beyond that, except to say that it seems to me that the board has been operating well over that period; therefore, one has to have confidence in what it has been doing.
Heaven forfend that I should encourage you to be unwise, Sir Muir. Perhaps board members with a longer tenure have something to add.
I have been on the board, in its non-statutory capacity, for almost two years. My background is in human resources. When I joined the board, and since joining it, I have been consistently impressed by the principled approach that it has always taken, in respect of not only its independence but the transparency of the processes that it has used, the care with which that has been done, the close involvement of all board members and so on.
What improvements would be worth considering?
We have two working groups. One of them is considering the section 13 matters specifically, and the lay members are considering the section 12 issues. Careful contemplation of what those working groups come up with will add to what we are doing, and we will refine the processes. However, the principled approach will not change, and the principles of transparency and fairness will continue to apply.
Does Mr Martin have anything to add?
From its origins, one of the principal functions of the board, in getting away from the system that previously applied to judicial appointments, has been the establishment of confidence in its processes, and the consolidation and continuation of that confidence.
I wish to pursue the issue of the thoroughness, objectivity and verifiability of the process and to get a bit of flavour from you about how all that works.
If one took such a system to its full rigour, there would be very systematised annual reporting. One can just about imagine how that might work for some of the smaller communities, but, on a bigger scale, how would the Law Society of Scotland report on its 10,000 members? We have not looked to the legal world to develop something that we can just plug into to call down what one might call, in hierarchical terms, an annual report on someone.
I would like to develop the point that Richard Keen made. One imagines that England has 10 times as many individuals in the profession, both at the bar and in the solicitor branch, yet Richard Keen is asked for information about applicants. I guess that that reflects the process in England. However, arrangements for Scottish judicial appointments do not appear to require such external verification, and he is not asked to comment; neither are sheriffs whom a candidate has appeared before nor members of the local bar or area practices. There must be various ways in which to gather not just the internal information that the candidate provides, but external information regarding the candidate's repute in the areas in which they practise. Is that not an important aspect of this unique and important job?
Our thinking at the moment is that we should move from candidates' simply nominating referees who have a general view of them and their background to having as referees people with whom they have worked. That moves us some distance towards where we are getting to; it does not take us to a formal and standard process whereby we always ask the dean of faculty and the Lord President or whomever. We will see how that goes and whether it works practically.
Before we hear from Mr Martin, I have another question. Sticking with what happens in England, is there liaison between the Scottish and English bodies about best practice, so that one can get guidance on possible ways forward from other people who have had the same problems?
There is regular liaison with Usha Prashar and her Judicial Appointments Commission and with the Northern Ireland Judicial Appointments Commission. We each try to learn from others in the work that we do. We had an early start, but the English commission has been able to rev up pretty quickly, in terms of its size and the establishment of its statutory basis. There might be some things to learn from it and, I am vain enough to say, I hope that there might be some things that it will learn from us. That is the plan. I spent some time with Baroness Prashar at the beginning of my appointment catching up on some of the issues. Some of that has gone into a little of the thinking that we have been doing, as has other colleagues' experience of visiting the English commission, attending some of its conferences and talking with Northern Ireland colleagues.
Speaking as a member of the board for two years, its having existed since 2002, I have considerable sympathy for what has been said, not least by Lord Osborne and the dean of the Faculty of Advocates. It is useful to bear it in mind that the creation of the board came out of a desire to move away from the old system—I apologise for mentioning that for the second time. Because of that and the view, right or wrong, that it was based on nods and winks, private soundings—that phrase was used—and personal knowledge and had become unacceptable for a range of reasons, in its origins the board might have gone a little too far to demonstrate that it was different. Thus, it set its face against anything that might be characterised as private soundings, confidential information or whatever. I would like to think that, with the benefit of experience and the existence of the board as a statutory body—indeed, with the benefit of the newer board members with their different experiences—we can recognise that there might have been a swing too far in one direction and that it is reasonable to move back a little in another direction. We must not do that to the prejudice of the aspirations that we all have for the body, so it must be seen to be done properly.
What are Ms MacArthur's views as a relative outsider to the legal fraternity prior to her appointment?
The principles that the chair mentioned are important: it is important to get good-quality evidence from a well-informed source. That is what we are trying to develop further. It is about what the person giving the evidence has seen that he or she can tell us. It is not about whether the person giving the evidence holds a particular office—there is a sense that that could be more restrictive. If we can go to people who have direct evidence about the candidate, we will get the best evidence that we can. Those are the underlying principles, and we are in the process of working out how we get there.
Are you able to go to people other than those whose names have been provided by the candidate?
Yes—well, possibly. The critical thing is whether the person has observed the candidate working, rather than operating on the basis of a secondary reputation—it is about professional competence as observed.
My question has been somewhat anticipated by Robert Brown's earlier question and by Mr Martin's remarks. At the risk of duplication, I will ask it anyway, in case there is other information the panel would like to put forth.
The procedure to date has been as already discussed: the candidate will identify three referees at a point in the process. After the initial sift, the referees of those candidates who have come through that sift are invited to provide a written reference to the board on a form that we provide. The information provided in that reference is then taken into account by the board when it continues its assessment of the candidate through a second sift and an interview and—ultimately—makes a recommendation.
Will you move towards specifying to a candidate the balance of referees that they have to supply—for example, that they have to supply a referee who has working knowledge of their performance as a professional and other referees who may verify other aspects of their qualities and life?
Yes. We are already doing that, in the sense that there will be a category of what we call "professional referees", who will comment on work—there should be at least one of those. There will be two other referees who will comment more generally.
Do you think that the Judicial Appointments Board for Scotland has struck the correct balance between ensuring that there is fairness for individuals—a level playing field for applicants—and ensuring that there is fair and qualitative information from the real world?
Forgive me if I do not answer your question directly. The board has always aspired to strike such a balance, and we are refining our approach. I do not know whether we have struck the right balance in the past—that is a judgment for others to make—but we certainly seek to do so. I return to my earlier point about confidence. We want to inspire confidence in everyone, including candidates, that the process is robust, so that even those who are not successful cannot say that they think that they were treated unfairly. They should be able to say that the process was robust on the day and that they did not succeed because they were judged fairly against others. We aspire to that.
It is a journey.
Exactly.
I am finding your evidence quite encouraging, because it has resolved some of the difficulties that arose from evidence that we took previously. From her experience, Ms MacArthur will be aware that there are people who make a fairly lucrative living from producing CVs. It would be naive to assume that that practice has not penetrated the legal world, as it has every other area. We were concerned that the interview was the principal criterion for appointment, given that some CVs and documentation might not have been prepared without assistance. What are the mechanics of the sift that is carried out?
It is being refined because of the additional duty under section 13 of the 2008 act. At the moment, all applications for shrieval appointments are considered by all members of the board, who consider the full application form and identify the referees. I do not think that we receive professional CVs—we may, but I have no experience of that. However, it is perfectly reasonable to theorise that that could happen.
I have a factual question. How many applications did you receive for each appointment?
We have some numbers from the previous year; Chris Orman will keep me right. There were 103 applications for the all-Scotland floating sheriff slate that runs until December this year. We long-listed 45 candidates, interviewed 35 and recommended 20 for inclusion on the slate. That gives you a flavour of the sort of cut that is made. The figures are broken down by gender; the proportions were essentially the same at each stage of the process, which in that sense is working in a reasonably unbiased way. There were 16 applicants for the post of senator in 2007, eight of whom were interviewed and one of whom was recommended, and 22 applicants for the post of sheriff in Kirkcudbright, eight of whom were interviewed and one of whom was recommended. In such cases, we interview quite a few people for each vacancy.
As members have no further questions on the vital issue of merit, we turn to diversity, the questioning on which will be led by Cathie Craigie.
Sir Muir Russell has the honour of chairing the board, which, as Roy Martin pointed out, is made up of 10 individuals—eight men and two women. Is the board doing enough to encourage women to take part in the process from the outset?
The flip answer to that would probably be that we do not appoint ourselves—you might expect me to say that. I shall not give the patronising answer, about the extent to which the women members punch above their weight.
I take your flip point, but are women sufficiently well represented on the board?
They are excellently represented, but in an ideal world there would be more of them on the board. I hope that that is not too flip an answer. Elspeth MacArthur might want to comment further.
It is worth adding that when appointing board members the process set out by the Office of the Commissioner for Public Appointments in Scotland is followed, and it is widely geared. There are only 10 people on the board, so the figures are disproportionately small, but it would be nice if there were more women members. That might be the case in the future.
Thank you.
We do not know. The duty is clear. As I said in my introduction, before I took up my appointment, the board set up a group to examine the evidence and information that were available, which led to the issuing, in February, of a questionnaire. We are working with the Law Society of Scotland and the Faculty of Advocates to consider diversity and a number of aspects of the judicial appointments process that might or might not influence the willingness of people to come forward. I will ask Elspeth MacArthur to say a word or two about that work shortly, as she has played a lead role in it.
I think that you have seen the questionnaire that went out, so you will know broadly what is covered. There are two things that the board wants to understand better. The first is the demography—the size and shape of the population from which we are recruiting. The survey will help us in that, as will other data. The second is people's perceptions, which relates to Cathie Craigie's point. We believe that the survey will be representative, although one might want to revisit it in the future. It will provide us with quantitative data: it will tell us how many people think X or Y and what the contrasting views are. If there is a particularly strong view on something, the survey will tell us whether that view is held randomly across the population—such as that 40 per cent of people hold it—or whether it is held by a particular group, such as the advocates, people who live outside the central belt, younger people or more experienced people. We will understand much better what people think. However, such surveys do not tell you why people think what they think. Subject to resource constraints and so on, qualitative work is often done to follow up such surveys. You look at a particular sample and try to get underneath it to understand why a particular view is held.
When do you expect the survey to be complete?
It is being worked on by the independent survey company at the moment. We expect it to be published at some point in the summer.
This question is probably directed to Elspeth MacArthur, too. Has the Judicial Appointments Board for Scotland been successful recently in increasing the number of women and people representing minority groups who are appointed?
I am confident that the processes that have been used and the principled approach that the board has adopted have produced a reasonable recruitment process and, given the candidates whom we have seen, the evidence is that it has done a reasonable job. However, we do not know enough about what the wider population from which we are drawing is really like. It is a generational issue, which changes over time.
The board's main role is to appoint our judiciary. Will it provide enough time and resources to collate the information that emerges, so that the data can make a difference? I note from our briefing for this meeting that although the ratio of male to female members of the Law Society of Scotland is almost 50:50, the ratio of men to women in the Faculty of Advocates is around 75:25. How will you use the information that you gather to try to secure the much more representative judiciary that we all want?
We must bear in mind the fact that appointments are always made on merit, which does not conflict with the idea of broadening diversity, because that is also about merit, over the longer term.
I accept that you need to collect all the data so that you can understand what is happening, but there is a perception that the judiciary does not fully represent the population that it serves. We all agree that appointments must be made on merit, but there is a strong feeling that the judiciary is not properly balanced. Will the board use the data to correct how applications are sought and how decisions are reached, so that there will be a better balance in the pool of people?
We can do two things: we can check our processes to ensure that they do not deter people who should not be deterred, and we can direct our communications better, for example to reach out to particular groups.
I have been encouraged by the extent to which the Law Society of Scotland and the Faculty of Advocates have been involved in work on the questionnaire. As you know, they were fully associated with it and with the launch publicity. Our statutory duty is
Following on from Sir Muir Russell's point, although I do not dispute the need for or the merits of the research questionnaire, part of me groans at yet another piece of research in the area. I am sure that it includes some issues that are particularly pertinent to the legal profession, or to women and ethnic minorities seeking judicial office, but a ream of work has been done on the barriers to women and ethnic minorities seeking senior office in other professions. What existing information could be used while that work is on-going?
The flip answer is not enough. If the group that prepared the questionnaire—which included Professor Alan Paterson, who has done a lot of study in the area—had been able to track the issues in relation to those populations, as has been done in other professions, we would be further on. However, we are quite near first base in terms of understanding what is happening beyond the raw statistics in the SPICe paper, which show the proportions of different sections of the population.
The research will help us to target our efforts more effectively. It is easy to take a broad view—to say that the situation must be due to this and that, so we will do a bit of everything—but if we understand better how different sections of the community view things, we can be much more effective in making a difference where it matters.
I am curious about whether you think that there is something in particular within the legal profession that acts as a barrier to women and ethnic minorities who are seeking senior office, and which is different from the barriers in other professions.
That might be one thing that we find out. Characteristics of the judicial role are quite distinct from other roles, which might or might not have consequences. We have to ask the question in order to find out.
I support entirely what my colleagues have said about the board's aspirations and the use that it will make of the information, but it must be appreciated that the situation is not solely under the board's control.
There is always a difficult balance in such circumstances. However, with your inside knowledge, perhaps you can confirm my impression that, as women have advanced in their legal careers, a much greater proportion of them are judicial appointees than was the case some time ago. The obvious corollary is that, as members of ethnic minorities continue along their career routes in the legal profession, we can assume that more judges and sheriffs will be appointed from ethnic minorities in due course. Is that a proper assumption?
I believe so. It is a practical consequence of the fact that the demography of the legal profession has changed substantially in my lifetime. When I was at university, approximately 10 per cent of the law course was women, but the figure is now 50 per cent or more. The character of judicial appointment means that people are appointed at the later stages of their careers. Although the processes do not take account of age per se in determining merit, those who apply tend to be people who have been in the profession longer. The logical consequence is that, as more women and people from ethnic minorities come through the legal profession into the senior end, more of them will be appointed to judicial office. I know that reference has been made to the so-called trickle-up effect not quite working in the medical profession. However, the convener is right about what we deal with at present and how that is likely to change.
Sir Muir, what is the role of the Judicial Appointments Board for Scotland in the appointment of sheriffs to Glasgow and Edinburgh?
I noticed the reference to that in the SPICe paper. We make recommendations to the Scottish Government and the First Minister. However, the process for filling specific posts—apart from those recruited directly over the past year for named areas such as Kirkcudbright and Dumfries—is handled in the Government department. We do not actually say in our slates, "This is a person for that post." The short answer to your question is therefore that we do not have a role in the process of back-filling and moving pieces on the chess board, if I can call our judicial colleagues that. Civil servants have an advisory role and the Cabinet Secretary for Justice and the First Minister have responsibility for the decisions.
Should the board be allowed to develop that role?
At this stage of my knowledge, I do not know. I know that some posts have been recruited for particular areas and that there is a general slate of people who are judged to be competent at the highest level to undertake the role of sheriff. My feeling is that shifting the appointment process to the board—as distinct from its judging fitness, suitability and merit—would be a huge step and would not be for the board to form a view on. I want us to go after the issues that we have been discussing, which are process, transparency, merit and having a diverse field—that is plenty for us to be getting on with.
You accept that the sheriffs in Glasgow and Edinburgh are significant, high-profile posts and that there might be concern that those appointments should be open to scrutiny in order to ensure fairness.
It is certainly important that the appointments are properly publicised and that people know what is going on. I do not know that there is any secrecy about that. I simply know that the issue does not come within our frame of reference unless a particular post is being recruited. As you know, that occasionally happens, but I have to say that it represents only a small proportion of posts.
You said that it is important that the appointments are properly publicised. You will have to excuse my ignorance, but is there a publication procedure for the Glasgow and Edinburgh posts? Is there any objectivity in the scrutiny of the matter or the way in which the posts are advertised?
The area-specific appointments that we handle are advertised and there is a special recruitment process for them.
If I understand the member's question about appointments to Glasgow and Edinburgh correctly, the chairman is quite right. We simply respond to ministers' requests, which by and large relate to all-Scotland floating sheriffs.
We will pursue the matter with the appropriate minister.
Meeting suspended.
On resuming—