Independent review of the statutory consultation element of the judicial appointment selection process.

Summary

WPG was commissioned by the Judicial Appointments Commission (JAC) to conduct an independent review of the Statutory Consultation element of their selection process. The brief was to review the approach to Statutory Consultation, whether the process disproportionately impacted certain groups and what, if any, improvements could be made.

Challenge

The appointment of members of the judiciary is a challenging context for selection and assessment. The JAC must deliver on their statutory duty to attract and recruit a diverse group of individuals in a fair and transparent way using a robust process including some selection elements mandated by law. One such requirement is the “Statutory Consultation” – where the JAC seek comments on candidates from someone else who holds that position or has relevant experience.

Concerns were raised regarding fairness and relevance of the Statutory Consultation, bearing in mind public dialogue concerning the diversity of the judiciary compared to the wider population. Following an appearance at the Justice Select Committee in 2021, the JAC commissioned an Independent Review of this process from Work Psychology Group (WPG).

WPG has significant experience conducting external reviews of selection processes using techniques and tools from across business psychology. WPG followed the literature on selection best practice to apply a mixed-method approach designed to interrogate fairness, reliability & validity, stakeholder acceptance, practicality and efficiency (key principles for any selection process, Patterson, et al 2018).

This project was politically sensitive. WPG’s use of interviews, alongside desk-based material review and quantitative analysis of selection outcomes, meant a range of individuals with knowledge of, or involvement in, the process could provide views. This supported effective stakeholder engagement and ensured all parties understood the intention of the work. WPG referenced its extensive experience of conducting reviews of selection methods in high-stakes professions, including judicial processes, to help stakeholders feel confident in the scope of the work and validity of the conclusions.

Approach

A kick-off meeting defined the scope of the review in consultation with the client and other interested parties. This was refined at the interim reporting stage, based on feedback from relevant bodies, to ensure the work spoke specifically to concerns about discrimination against certain groups, as well as concerns about the broader Statutory Consultation process.

A range of material was reviewed by WPG. This comprised generic information on the Statutory Consultation process, including background on its use in different selection processes, and example ‘live’ Statutory Consultation data from recent selection exercises. Interviews were arranged with individuals from the JAC, senior judiciary including those who facilitate Statutory Consultation processes, and relevant external professional bodies including the Law Society, CILEX and the Bar Council. This review enabled WPG to generate conclusions as to the value and fairness of the process at a holistic level.

Following initial reporting, the scope of the work was developed by WPG and the JAC to dive deeper into the impact of Statutory Consultation on specific groups when split by gender, ethnicity, disability, and professional background. Use of quantitative analysis comparing success in different selection exercises across these groups provided an indication of the impact of the Statutory Consultation data on the outcome for different groups. Additional qualitative analysis generated by Statutory Consultations, sampling across all groups, was used to understand the quality and fairness of this data and how it might therefore impact on selection decisions. Analysis from both phases of the work was synthesised to generate recommendations for the ongoing use of Statutory Consultation across judicial selection.

The findings were reported to stakeholders using summary slides and a discussion-based meeting at both interim and final reporting stage. A full version of the review was created as a report that could be circulated by the JAC to all interested parties and act as a formal record of the review.

The final report was published on the JAC website along with the JAC response.

Outcome

All stakeholders gave positive feedback on the comprehensive nature of the work and the useful findings the review generated.

As a result, the Statutory Consultation process will be changed for a number of roles and removed for some others. For the remaining roles, the process will remain as per legislation, but changes will be made to how it is administered and managed to make it more efficient and reliable. The review has led to tangible change that is likely to significantly improve stakeholder perceptions of process fairness and deliver savings in time and resource for the judiciary and JAC who are involved.

The work has been helpful in generating ongoing discussion about the relative fairness of recruitment processes for different groups and illustrating the importance of supporting applicants from a diverse range of backgrounds from the earliest stages of recruitment. Whilst the Statutory Consultation itself does not impact on the fairness of the process for certain groups, as far as could be evaluated from the data available, more still needs to be done to reduce disparity in diversity in selection.

Improved data collection at all stages of selection and more outreach to all potential applicants would allow further analysis of this issue and support ongoing change. However, making improvements to the consistency and reliability of the Statutory Consultation, or removing it from some processes, will have an immediate impact on the experience of selection for many people.

Acknowlegements

The JAC Policy Team and the Judicial Office for supporting and facilitating this work.