The Report of the Advisory Panel on Judicial Diversity 2010 Advisory Panel on Judicial Diversity Contents Overview and Summary of the Panel’s Findings 4 List of Recommendations 7 Section 1. Introduction 13 Section 2. A Fundamental Shift in Approach 18 Section 3. Encouraging New Entrants to the Judiciary 22 Section 4. The Selection and Recommendation Process for 31 Judicial Appointments Section 5. Developing a Judicial Career 43 Section 6. Judicial Culture, terms and conditions 48 Section 7. Conclusion 53 List of Annexes 54 3 Advisory Panel on Judicial Diversity Overview and Summary of the Panel’s Findings 1. There is a strong case for a more diverse judiciary. Not only should there be equality of opportunity for those eligible to apply, but in a democratic society the judiciary should reflect the diversity of society and the legal profession as a whole. Judges drawn from a wide range of backgrounds and life experiences will bring varying perspectives to bear on critical legal issues. A judiciary which is visibly more reflective of society will enhance public confidence. 2. We have concluded that there is no quick fix to moving towards a more diverse judiciary. This will come as no surprise to those who have worked to promote diversity over recent years. 3. We pay tribute to those efforts, many of which are listed at Annex iii, but argue that what has been lacking to date is a coherent and comprehensive strategy to promote diversity. 4. The message from our research and consultations is consistent with research and experience in other jurisdictions: we will achieve significant transformation if, and only if, diversity is addressed systematically – not only within the appointments process, but throughout a legal and judicial career, from first consideration of the possibility of joining the judiciary to promotion at the most senior level. 5. Delivering a more diverse judiciary is not just about recruiting talent wherever it may be found, important though that is, but about retaining talent and enabling capable individuals to reach the top. 6. This message resonated widely with our consultees, though not all of them will agree with all of our recommendations. We sought buy-in, not consensus. The Panel’s discussions and inquiries have already galvanised, promoted and supported change. We have already seen: ` the establishment of the Solicitors in Judicial Office Working Group that is looking at how law firms can best support talented solicitors to come forward, ` joint working between the Ministry of Justice, the Judicial Appointments Commission (JAC) and the Directorate of Judicial Offices (DJO) on data sharing, and ` the development of real momentum around the need for judicial appraisal. 7. Sustained progress on judicial diversity requires a fundamental shift in approach from a focus on selection processes towards a judicial career that addresses diversity at every stage. 4 Advisory Panel on Judicial Diversity 8. This approach requires: ` ensuring that lawyers from all backgrounds recognise early on in their career that becoming a judge could be a possibility for them. ` more effort by the legal professions to promote diversity at all levels and to support applications from talented candidates from all backgrounds. ` better information on the career paths available. These career paths must promote opportunities across the courts and tribunals as one judiciary. ` providing a variety of means for potential applicants for judicial office to understand what the role involves and to gain practical experience and build confidence. ` open and transparent selection processes that promote diversity and recognise potential, not just at the entry points to the judiciary but also for progression within it to the most senior levels. ` the evolution of the Judicial Studies Board (JSB) into a Judicial College. The College should provide training and development that not only equips judges to perform their current role but also enables them to develop to their full potential and address areas of weakness. It should, in partnership with other institutions, support the development of skills for those who want to enter the judiciary through courses on ‘Developing Judicial Skills’. ` the consistent implementation of appraisal and mentoring throughout the judiciary. This will build confidence and skills, ensure that talent is identified and encouraged, ensure training is better targeted, improve performance and support career development. ` terms and conditions that fully support diversity, including reasonable adjustments for those with disabilities and promotion of flexible working, etc. 9. To deliver the fundamental change that is needed will also require new ways of working together, from an approach that co-ordinates activity to one that actively drives change. In particular: ` Change must be implemented as a comprehensive package of reform. ` the existing tripartite judicial diversity strategy between the Lord Chancellor, the Lord Chief Justice and the Chairman of the Judicial Appointments Commission needs refocusing and extending to include the leaders of the legal profession (Bar Council, Law Society, and Institute of Legal Executives (ILEX)) and the Senior President of Tribunals. This Judicial Diversity Taskforce should oversee an agreed action plan for change as a result of this Panel’s findings and publish an annual report that demonstrates where progress has been made and where it has not. It must measure its success, acting as a group that delivers change and holds its members to account. ` this group also needs to ensure that we learn from experience. That means systematic, consistent monitoring and evaluation of what works and what does not, so that resources can be allocated where they are most effective. 5 Advisory Panel on Judicial Diversity ` there needs to be a proactive campaign of mythbusting to dispel the widespread misconceptions that are deterring good candidates from under-represented groups from coming forward. ` there must be a new form of engagement. The legal profession must actively promote judicial office among those who are currently not coming forward - the work of the Solicitors in Judicial Office Working Group outlined in this report represents a significant and welcome change. The Judicial Appointments Commission needs to be more responsive to the experience of its customers. The judiciary needs to support and encourage new entrants more actively. 10. We stand by the need to implement our recommendations as a package if we are to make significant progress. In the time available, we have not been able to cost our recommendations in detail. We recognise that resources are scarce in the current economic climate, but do not overlook: ` the potential benefits of change, e.g. appraisal and improved judicial training will not only increase diversity but improve judicial performance. ` the scope for initiatives to be self financing, e.g. courses in Developing Judicial Skills. ` the possibility of reallocating resources from existing initiatives (e.g. uncoordinated outreach) evaluated as less effective than others. 6 Advisory Panel on Judicial Diversity List of Recommendations A fundamental shift in approach Recommendation 1. There should be a fundamental shift of approach from a focus on individual judicial appointments to the concept of a judicial career. A judicial career should be able to span roles in the courts and tribunals as one unified judiciary. Delivering change Recommendation 2. The recommendations made in this report must be implemented as an integrated package and sequenced carefully. Recommendation 3. The tripartite judicial diversity strategy between the Lord Chancellor, the Lord Chief Justice and the Chairman of the Judicial Appointments Commission should be extended to include the leaders of the legal profession (Bar Council, Law Society and Institute of Legal Executives) and the Senior President of Tribunals. It should be refocused on implementing the changes we have recommended. Recommendation 4. This Judicial Diversity Taskforce should oversee an agreed action plan for change and publish an annual report setting out the progress made. The Advisory Panel on Judicial Diversity will meet again in 2011 to take stock of what the Taskforce has achieved. Measuring progress Recommendation 5. There should not be diversity quotas or specific targets for judicial appointments. Recommendation 6. The work already under way on the capturing, handling, sharing and regular updating of judicial data between the Ministry of Justice, Judicial Appointments Commission, and the Directorate of Judicial Offices is essential and should be in place within 12 months of this report’s publication. Recommendation 7. The Judicial Diversity Taskforce should use this information as a starting point to set a baseline against which it will measure future progress. Recommendation 8. One principal responsibility of the Taskforce must be to ensure that there is systematic, consistent monitoring and evaluation of what works and what does not. Encouragement to legal professionals Recommendation 9. Judges and members of the legal profession should engage with schools and colleges to ensure that students from under-represented groups understand that a judicial career is open to them. 7 Advisory Panel on Judicial Diversity Recommendation 10. Diversity and Community Relations Judges should have responsibility for organising contacts with institutions and the professions to promote a judicial career among those from under-represented groups. Recommendation 11. Judges’ marshalls and judicial assistants schemes should be extended, openly promoted, transparent as to process, targeted at under- represented groups, supportive of the work of the courts, and properly evaluated. Developing a diverse pool Recommendation 12. The Panel recommends that the Bar Council, the Law Society and ILEX set out a detailed and timetabled programme of change to improve the diversity profile of members of the professions who are suitable for appointment at all levels. They should bring this plan to the Judicial Diversity Taskforce within 12 months of the publication of this report. This plan should include information on how progress will be monitored. Structured encouragement Recommendation 13. The legal professions and the judiciary should put in place systems for supporting suitable and talented candidates from under-represented groups to apply for judicial appointment. Recommendation 14. The Judicial Diversity Taskforce should promote the availability of bursaries for people from underrepresented groups to undertake Developing Judicial Skills courses. Getting the right experience for judicial office Recommendation 15. The Judiciary should expand the judicial job shadowing scheme. Recommendation 16. Developing Judicial Skills courses approved by the Judicial Studies Board should be developed to help aspiring judicial candidates understand and develop the skills they need for judicial appointment. Encouraging solicitors to apply Recommendation 17. Law firms should regard part time judicial service as positive for their practices and should encourage part-time service as proposed by the Solicitors in Judicial Office Working Group. A simplified payment regime should be introduced for solicitor fee-paid judges. Employed lawyers in the public sector Recommendation 18. Employed lawyers in the public sector with the relevant skills should be encouraged to apply for fee paid roles in jurisdictions where it is less likely that an actual or perceived conflict of interest will arise. They should also be encouraged to consider other opportunities to develop their skills, such as 8 Advisory Panel on Judicial Diversity Developing Judicial Skills courses. The Panel looks to professional bodies to play their part in encouraging employers to permit this development. Recommendation 19. The terms and conditions for all employed lawyers should permit a part time judicial role. Selection on merit Recommendation 20. The JAC’s merit criterion 3, “an ability to understand and deal fairly”, should be replaced. Positive action provision in the draft Equality Bill Recommendation 21. The JAC should make use of the Equality Bill positive action provisions where the merits of candidates are essentially indistinguishable. The use of non-statutory requirements Recommendation 22. All non-statutory criteria must be justified. Recommendation 23. Those applying for salaried judicial posts should normally be expected to have previous judicial experience. There should be provision for exceptional cases where candidates have demonstrated the necessary skills in some other significant way. Recommendation 24. In those rare cases where candidates have no previous judicial experience they must be tested for suitability for appointment in the same way as those applying for fee-paid office. The test and role play Recommendation 25. The qualifying test should be put online. Recommendation 26. The qualifying test should be reviewed to ensure it is acting as an effective sift process. Feedback to unsuccessful candidates Recommendation 27. All candidates for judicial appointment should have access to feedback, including on their performance in the qualifying test. Recommendation 28. The JAC should capture its statistical data in a way that would allow the monitoring of the number of people who chose to re-apply following a previous unsuccessful application. References Recommendation 29. Candidates should not be asked for references until after they have been notified that they have completed the qualifying test successfully. 9 Advisory Panel on Judicial Diversity Recommendation 30. Clear guidance should be given to candidates and referees that references must be evidence based and relate to the skills being tested. The JAC’s interviewing panels Recommendation 31. The JAC must assemble diverse selection panels. There should always be a gender and, wherever possible, an ethnic mix. Recommendation 32. Panel chairs and members must receive regular equality and diversity training that addresses how to identify and value properly transferable skills and also to ensure that they are aware of any potential issues regarding their unconscious bias. Recommendation 33. All JAC selection panel chairs and members should be regularly appraised and membership periodically refreshed. Poorly performing panel members should be removed. Recommendation 34. There should be a stable pool of high quality, appropriately trained judges available, who have the clear responsibility for sitting on selection panels. This pool should be regularly refreshed. Appointing candidates with potential Recommendation 35. Fee paid judges should not normally be appointed for more than 3 renewable terms. Recommendation 36. There should be a staged period of induction where the appointed person has little or no experience of sitting judicially or of the relevant jurisdiction. Deployment and streamlining the process Recommendation 37. The Judicial Diversity Taskforce should lead an immediate review of the current forecasting mechanism. Recommendation 38. Judges should be required to give notice of their anticipated retirement date. Recommendation 39. The JAC should operate smaller, more regular selection exercises to aid career planning, with an annual competition for the main tiers of the judiciary wherever possible. Recommendation 40. The JAC should review the moderation process to ensure that the methods used during large selection exercises can identify effectively and value properly the diversity of talent available. 10