A LACK of diversity is undeniable, but steps are now being taken to make our judiciary more representative, says Rob Marrs
There’s an old cliché that the best footballers don’t always make the best managers. The best managers in history – Shankly, Clough, Ferguson, Stein – all played the game but none would be considered great players.
Is that also true of the judiciary? It is generally believed that superstars on the courtroom floor will make fine judges, but is that the case? Or are there specific skills that great judges have that may be shown by our finest courtroom practitioners but may also be shown by other lawyers?
It’s essential that judges operate to the highest professional standards and have the knowledge and qualities required to assess the merits of a case and the people appearing before him or her, ensuring their decisions are taken without fear or favour to anyone.
Our judiciary is widely respected and admired, however the Law Society of Scotland is not alone in thinking that more can be done to improve diversity on the bench. Alongside other organisations, we have been considering how best to bring about a judiciary that better represents the public it serves and those working in the legal profession.
The society, the Faculty of Advocates, the Judicial Appointments Board for Scotland (JABS) and the Judicial Office, are part of a diversity steering group which hosted a well-attended conference, “Merit and diversity – Compatible aspirations in judicial appointments?” last year.
In the time since the conference, tangible improvements have been made, such as making the judicial appointment application process more accessible and increased engagement with interested parties.
These changes follow the great strides made since the inception of the JABS in improving transparency in the appointments process. However, we believe that still more can be done.
The current lack of diversity, with men making up more than 70 per cent of judicial posts, is undeniable. It is not representative of the legal profession or the population, which is why we have published a series of recommendations aimed at improving diversity of those on the bench.
We have recommended reviewing existing criteria for judicial appointments to examine if there are unnecessary barriers preventing potential candidates from applying. We also think it’s important that in addition to considering those recommended for appointment, we look at what can be done to broaden the pool of potential candidates.
We think consideration should be given to a more structured career development for judges and ensuring judicial appointment can be seen as an attractive option for a range of would-be candidates at an early stage of their legal career. This could include developing a distinct judicial career path– as happens in several European jurisdictions – with specific training for advocates and solicitors who are interested in a career on the bench.
We would encourage engagement with groups who may be interested in becoming a sheriff or a judge at the earliest opportunity, including outreach work in schools, universities and the early stages of people’s legal careers.
Offering shadowing and mentoring opportunities for less well- represented groups has worked well in England and Wales and this could easily be adopted in Scotland.
Allowing experience as a tribunal judge to count for appointment as a senator would be a step in the right direction, as would allowing tribunal judges in the civil courts to offer judicial assistance. Reviewing current criteria and eligibility for those who can apply for a judicial appointment would allow us to fully consider the attributes needed by those on the bench.
Key to becoming a sheriff is experience in court work and case presentation skills, meaning court practitioners can more easily provide evidence to meet the required competencies for the role than other legal professionals.
This type of experience may be highly desirable, but other relevant competencies include the ability to make good, reasoned decisions within a reasonable timeframe and knowledge of the law, the rule of law and court procedure.
So, too, is the ability to deal with and understand people appearing before them, whether solicitors, advocates or members of the public, and to be able to communicate complicated concepts in straightforward language – something which could become increasingly important if more people choose to represent themselves in court if unable to access legal aid.
There are many ideas to consider and we look forward to working with our partners to move towards a judiciary which meets the highest professional standards and better represents the people it serves.
• Rob Marrs is head of education at the Law Society of Scotland. www.lawscot.org.uk