‘You provided a very dense and difficult to read self-assessment. It contains a lot of detailed, complex information but the lay panel found it very hard to gauge the merits of many of your examples.’ (emphasis added)
In the first half of 2018 there were four competitions for judicial appointment for which I applied. In each the Judicial Appointment Commission did a paper sift to decide whom to invite to interview. A key element was the self-assessment, limited to 250 words for each of the competencies that needed to be shown.
The detailed competencies were almost identical in each competition, save that two also required leadership qualities. In addition, the deputy High Court judge (DHCJ) competition required candidates to show ‘exceptional intellectual ability, expertise and experience’. My self-assessments in each were word-for-word identical. All successful candidates were required to be appointable as section 9 (DHC) judges.
In the competition for a specialist circuit judge in Manchester (circuit commercial/Chancery/TCC), I was invited for interview and was rated as selectable. Unfortunately, a better candidate got the job, which is fair enough.
In the other three competitions I did not get through the sift. The ratings of my self-assessments in the four competitions were completely variable. Under the competency ‘exercising judgment’, the DHCJ panel considered the evidence did not demonstrate the competency. The panel for Manchester considered the evidence was ‘strong and extensive’. In the competition for a senior circuit judge to sit in Chancery in London, the panel said the evidence was ‘sufficient’. The panel considering the designated civil judge (DCJ) competition in London said I provided ‘strong evidence’ for the competency but was ‘marked down for the way [my] self-assessment ha[d] been structured.’
On the possessing and building knowledge competency (shown below under 'Possessing and building knowledge'), Manchester’s assessment was ‘Outstanding’; DHCJ: ‘Not demonstrated’; London Chancery: ‘Insufficient evidence… You produced a dense list of cases in which you had been involved, with very brief points about the key issues, but did not provide evidence of your ability to get to acquire knowledge of unfamiliar subject matter.’ And the designated civil judge competition: ‘Sufficient evidence’.
On assessing and clarifying information, the DHCJ and Chancery panels considered the evidence sufficient. The London DCJ panel’s initial feedback said the evidence was ‘sufficient’ but again marked down for the ‘structure’. After I complained, the JAC accepted that there had been maladministration in the feedback. The panel in fact thought the evidence was insufficient on this competency. The Manchester view was that the evidence was ‘extensive and strong’.
On working and communicating with others, evidence was sufficient for the DHCJ and London DCJ competitions. The London Chancery feedback said: ‘While there was evidence that you were alert to diversity issues and had experience of adapting your approach to dealing with these, there was insufficient evidence of your ability to work with colleagues. This and the wider concern about the dense presentation in the rest of the self-assessment, led the panel to conclude that there was insufficient evidence of this competence.’
I complained. (There was evidence of working with colleagues in the possessing and building knowledge competency box.) The JAC said that this feedback was quite wrong. I had in fact satisfied this competency and indeed was appointable. There were, however, stronger candidates, so I was not invited to interview. The Manchester view was again that my evidence was ‘extensive and strong’.
On managing work efficiently, the DHCJ view was that this was not demonstrated. The London Chancery and DCJ panels: sufficient evidence. Manchester: evidence ‘extensive and strong’.
The London Chancery and DCJ competitions had an additional requirement of leadership, but both considered I had provided sufficient evidence of this.
Weighting of stylistic criteria
These results on their face appear random. The different panels had a completely different understanding of what is required to satisfy the requirements. Take the most obvious point. The style of my self-assessment is appalling (my judgments are written quite differently). However, the JAC requires candidates to evidence five or six bullet points in the 250 words allowed. To my mind marking a candidate down for a ‘dense’ style must be wrong: the candidate does well to get so much material into 250 words.
However, there is another issue. If the JAC considers that style is important, then they should say so. Candidates can then adapt our self-assessments so that lay panellists can read them more easily. Instead, some panels apply style criteria and others do not. It is the inconsistency which is objectionable.
I should add that a complaint to the Judicial Appointments and Conduct Ombudsman succeeded on the feedback point, but he considered that it was fine for the JAC to fail to ensure their criteria for appointment are applied consistently.
Wider issues: assessing effectiveness
A failure to ensure consistency in assessing candidates is one thing, but there are also wider issues. Let us start with the question: Are the judges the JAC recommends under this system of appointment any good? Her Honour Frances Kirkham CBE, one of the first Commissioners, explains in Debating Judicial Appointments in an Age of Diversity (a Festschrift of essays published in 2017 to mark the JAC’s first decade of existence) that the ‘absence of appraisal or other form of job assessment for most judicial posts made it impossible for us to measure our effectiveness’.
This is nonsense. Firstly, the courts are (with exceptions) open to the public. The JAC could easily send along an academic to sit in court. There is now an academic sub-industry devoted to analysing UK judicial appointments. It does not usually take long to say whether a particular judge is good, bad or indifferent. There have already been much more intrusive fly-on-the-wall academic investigations of the judiciary such as Penny Darbyshire’s Sitting in Judgment and Alan Paterson’s Final Judgment: the Last Law Lords and the Supreme Court. The idea of academic appraisal of judges is hardly new. Interviews with litigants and advocates would allow an even better assessment of judges’ ability.
Secondly, the JAC rates applicants as A (outstanding), B (strong), C (sufficient/appointable) and D (not appointable). It used to be that all successful candidates were A or B, but below the High Court that has not been the case for some years. In 2018, 30 district judges were promoted to the circuit bench. The JAC appears to have made no attempt to see what marks those district judges were given when they were first appointed as district judges. If the successful 30 had all been given As when appointed to the district bench, that would suggest that the JAC recruitment system was working well. If most of them were Cs, that would point to a potential problem. A simple solution to assessing the JAC’s systems, but not one, it seems, adopted.
Is something wrong with the system?
A frequent complaint is that apparently well-qualified and suitable applicants fail to get through the appointment process. Frances Kirkham says: ‘When we looked at the performance of the supposed star candidate we generally found that he or she had performed badly, often having taken little trouble to prepare properly.’ Fair comment, perhaps. But when such complaints are as widespread as they are, it says that something is wrong with the assessment system.
Before responsibility for prisons was moved from the Home Office, a major task of the Lord Chancellor’s Department was judicial appointments. In the days of the LCD, panels usually consisted of a senior civil servant presiding, a judicial member and a lay member, typically a justice of the peace and thus familiar with judicial work. The civil servants dealing with the appointments often had decades of experience, so they were able to see how their past recommendations had gone.
The JAC has no corporate memory. It has no long-term responsibility for ensuring good judicial appointments.
As to the panels of three, only the judicial member remains. The other two are described as ‘lay panellists’, but this is a misnomer. The majority are human resources specialists. A typical career path is working in business in an HR department, taking early retirement and then setting up as an HR consultant. Few have any personal judicial experience. This domination of the process by HR specialists is unusual.
Moreover, panels do not seem to act collegiately. In one feedback I was told ‘the lay members found it hard to understand the issues at stake in the cases you described’. Why did the judicial member not explain matters unclear to the lay members?
For each exercise the JAC approves a list of five or six competencies. In most job specifications, the employer divides the sought-after qualities into those necessary and those merely desirable. The JAC does not. Everything is essential. The effect is that, if a candidate fails to satisfy any one of the competencies, he or she is immediately rejected: the candidate never gets to be weighed against the other candidates. This leads to box-ticking.
Moreover, the Civil Service, where competency-based selection originated, has abandoned the system and replaced it with a process called ‘success profiles’, which is much more experience-based.
In my view, the JAC needs to look at its processes much more critically.
Possessing and building knowledge
Admitted to German bar. Many cross-border German cases. Catalyst Recycling-v-Nickelhütte _EWCA_Civ_541, _EnvLR_3 required explaining (notoriously complicated) German administrative law on cross-border deliveries of recycling materials. CA understood point raised on appeal.*****Built expertise in cross-border insolvency cases on disputed centres of main interest: Sparkasse Bremen-v-Armutcu _EWHC_4026_(Ch), _BPIR_210/cross-border company mergers: Re House-Clean Ltd _EWHC_2337_(Ch), _BusLR_1145.*****Gibraltar had new insolvency legislation (Australian statute-based). Read Australian textbook/subscribed to Jade.BarNet.com.au (Australian case-law) to understand new law. Delivered four key judgments, including Regent Centre reported _BPIR_730/2015_Gib_LR_30.*****Real property law is archaic. Showing exceptional ability to develop old law to apply to modern conditions, delivered guideline judgment on partitioning freeholds under 1539 Act (31_Hen_VIII_c.1): held Coke on Littleton allowed horizontal partition and Warner-v-Baynes (1750)_Amb_589 permitted partitioning by granting a long lease to a tenant-owned company and leasebacks of individual flats with “owelty” (technical expression=balancing payment) due: Facio-Beanland-v-Murphy 2015_Gib_LR_243.*****JCT building-contract applied Gibraltarian law. Provided for adjudication, but excluded UK 1996 Act/1998 Scheme. Analysed UK/NSW/ACT/Victorian/WA/Singapore adjudication provisions. Held, term too vague to enforce: Ansaldo-v-Sharrock (21.4.17).*****R(Alcantara)-v-DPC (13.3.15): Judicial review/planning refusal. Had to learn Gibraltarian planning law/identify differences with English law, to deliver written judgment overnight.*****Read Lawtel summaries daily. Attended Helsinki conference on Fundamental Rights Charter---Commonwealth Law Conference/Melbourne. Chaired session Chancery Bar Association seminar/Gibraltar.*****Colleague deciding whether to authorise deportation of a Moroccan, Gibraltar-resident all his life but with extensive minor criminal convictions. Sharing knowledge/supporting her, informed her of R(Johnson)-v-SSHD _UKSC_56, the day UK Supreme Court handed it down. Directly on point. Government consequentially withdrew deportation application.
THE STATS: 23 JAC selection exercises (excluding senior judicial) completed between 1 April 2018 and 31 March 2019: 4,917 applicants, 1,986 shortlisted, 1,013 recommendations for immediate appointment.
The dangers of self-assessment? The Chancery Bar Association has expressed concern about the process of self-assessment and the weight the JAC places on a candidate’s own assessment of his or her ability. In a letter to Lord Kakkar, Chairman of the JAC, Amanda Tipples QC (3 June 2018), then ChBA Chair said: ‘[S]ome candidates with the skills to be a judge are lost from the application process by dint of their own modesty or inexperience in this type of form-filling and this, it seems to us, is a matter of real concern. Further, in the light of the feedback received, we are concerned that self-assessment is an area where, in particular, women and BAME candidates may be disadvantaged.’
The letter went on to say: ‘Based on the anecdotal evidence we have received, we understand that candidates who (at their own considerable expense) engage consultants to advise or assist them with completing the self-assessment in the application form (and interview training in due course) often fare better in the application process than those who have not done so.’
Adrian Jack was a Justice of the Supreme Court of Gibraltar for three years. He is starting an appointment as a Justice of the Commercial Court in the British Virgin Islands.