ALISTAIR BONNINGTON

It is sadly typical of certain lay members of the Scottish Judicial Appointments Board that they should endeavour to draw public attention away from the board's shortcomings by making a public pronouncement on the lack of female candidates and candidates from ethnic minorities. On female applicants for judicial posts, they are quite wrong in what they have stated.

The chairman, Sir Neil McIntosh, in his public statement, encourages female candidates for the judiciary by saying: "When women do apply, they are successful." Well, that will be news to the many excellent women lawyers who have applied and been rejected. None of the many female applicants (both successful and unsuccessful) who have been infuriated by this misleading assertion want anything more than fair treatment from the board. None of them expects preferential treatment because of their gender. They do not subscribe to the politically correct approach espoused by some members of the board.

Sir Neil's misleading statement must be particularly shocking for the female candidate who is at present a sheriff and has applied unsuccessfully on four occasions to the JAB to be appointed as a judge. On two of these occasions, she did not even get an interview and has been refused the common courtesy of rational feedback from the board. This is despite the fact that she is inundated with requests from the Lord Justice-General to sit as a part-time high court judge. He clearly knows she can do the job.

The statement was galling, too, to the experienced senior lawyer who, at her interview for a sheriff's job, was quizzed by Professor Alan Paterson, one of the lay members of the JAB, about her management abilities. She eventually had to point out to him that the management of the court is carried out exclusively by the sheriff principal and it was no part of the sheriff's job. She was not appointed. Maybe she knew too much. Scotland's women's lawyers will note that the same Professor Paterson has been put in charge of the board's investigation into why so few females apply.

Sir Neil should now have the decency to publish figures showing the number of female applicants and how they have fared. The board, like other quangos, is forever bleating about "openness and transparency". Well, let's have some from the JAB right now.

The prime reason for creating a Judicial Appointments Board was to remove the perception of "old pals' act" appointments by the Lord Advocate. For that reason, I and many others support the creation of a board. However, a board which contains 50% lay membership who know nothing about the work of judges and even less about how to single out those few individuals who can carry out the task, is potentially dangerous. If the lay persons are wise and regard their job as to be policemen to make sure the lawyers are not going off the rails, the system should work.

However, the likes of Sir Neil McIntosh and Professor Alan Paterson, for reasons quite mysterious to anyone with an ounce of common sense, think they should participate fully in the selection process. They do so, to disastrous effect. Because of the silly approach of these lay people, we have a crazy system whereby the proven abilities (or inabilities) of applicants, which are widely known in the practising profession, are ignored completely. The JAB appoints people purely on the basis of the terms of the application submitted, the inevitably favourable words from referees and the interview itself. As Lord McCluskey has observed, this is roughly equivalent to how you would employ a cleaner.

When I last had occasion to suggest in print that the JAB was somewhat short of wonderful, Professor Paterson penned a reply indicating that JAB members had not been made aware of any dissatisfaction among members of the Scottish legal profession; therefore, no such dissatisfaction existed. I suppose this must pass for reasoning in academe.

It is almost embarrassing to have to point this out, but in a profession where a huge percentage of people wish to end their careers on the sheriff court or high court bench and are therefore dependent on being appointed by the JAB, they are hardly likely to bite the hand that potentially would feed them. The true position is that the JAB is an after-dinner joke in the legal profession. The profession's lack of confidence in the JAB has recently led the senior judiciary to intervene by having the JAB submit names of possible nominees to them. Hardly a vote of confidence! Separately, the JAB's failure to observe confidentiality concerning those who apply unsuccessfully to it is indicative of the unprofessional approach of some members to their work.

The underlying notion of having a board to select sheriffs and judges is sound. But the Scottish experience thus far is that some of the lay members of the board are unsuitable for the task. The day of the well- meaning enthusiastic amateur has long since gone in serious aspects of civic life. We should recognise that in the case of the Judicial Appointments Board. Scottish women lawyers deserve much better.