Much can be done to encourage solicitors to apply for posts in the judiciary, a sector historically dominated by barristers
The latest statistics from the Judicial Appointments Commission (JAC) tell the story clearly enough: 1,071 solicitors applied for the 193 deputy district judgeships available in its most recent selection exercise – the biggest the JAC has ever run – and just 9% (94) made it through to appointment.
By comparison, 284 barristers applied for this junior judicial role and 28% (80) were successful.
While considerable progress has been made in encouraging women and black and minority ethnic (BME) lawyers to apply for and succeed in judicial appointments, solicitors have become the main problem group.
The lord chief justice, Lord Judge, recognised this last week when he admitted that he had failed to encourage City lawyers to apply and next month the commission will publish a 10-year analysis of the appointment of solicitor candidates, along with recommendations for improving the situation.
It shows that solicitors are performing better under the JAC at entry and mid-level positions than before, and an increase in solicitors winning more senior appointments. Less positively, there is little sign of improvement in the number of solicitors applying. It matters because of the greater diversity – in several ways, not least experience – that solicitors bring to a bench that has historically been dominated by barristers.
Research carried out in 2008 by Professor Dame Hazel Genn of University College London found that many senior practitioners (both solicitors and barristers) are deterred from applying either temporarily or permanently by practical issues relating to judicial working conditions. These include the geographical and jurisdictional deployment of the senior judiciary, salary, workload, location, support, patterns of working and general flexibility.
"Most of these issues apply equally to women and men, but some aspects impact disproportionately on women and especially those who have primary caring responsibilities," she wrote in her report, which was commissioned by the Judicial Executive Board.
Solicitors aspiring for high judicial office need to start with a junior part-time role, which will mean time out of the office and less fee-earning. Harder still, a solicitor with aspirations for the high court or beyond (supreme court justice Lord Collins is a former head of litigation at City firm Herbert Smith) will need to take on a part-time appointment around the age of 40, when they are at their fee-earning peak.
High court judge Gary Hickinbottom, once a City solicitor, started as a parking adjudicator, aged 38 and would work weekends and use annual leave to ensure that sitting did not reduce his billable hours.
For women trying to juggle the demands of practice and family life, "this can seem like an impossibility", found Genn. Then there is the fear that taking a part-time appointment could be seen as a lack of commitment to the practice.
"Women solicitors who had nevertheless become recorders thought that they had had to struggle to do so in the face of strong opposition from their firms, and had feared that they might be committing 'career suicide,'" Glenn reported.
Mark Stobbs, director of policy at the Law Society, recognises this fear, but says City firms are changing, with some of them seeing judicial appointments as part of their corporate social responsibility activities.
Various changes are needed, however – such as an end to the rule that prohibits salaried judges from going back into practice after they leave the bench, he says. Solicitors also need to realise that a background in litigation is not necessary to apply.
"A lot of the skills solicitors have in terms of case management and analysis make them more suited to the modern judiciary than the typical barrister," Stobbs suggests.
This will be a slow process. There is only so much that the JAC, the Law Society and others can do to bring solicitors into the fold – the outreach efforts are already considerable – and there are other ways to improve diversity.
Changes introduced by the previous government mean legal executives can now apply for certain posts and Ian Ashley-Smith was the first Fellow of the Institute of Legal Executives appointed when he won through the deputy district judge competition.
With 75% of legal executives women, 13% from a BME background, and most entering the law without a degree, they promise to open up the judiciary more than solicitors.
At least the JAC will be there to do this work. Pre-election, the Tories were not keen on the commission, but to the surprise of many it survived the quango cull. This may be because the unpalatable alternative was to go back to the executive controlling the appointments process.
At least solicitors have the opportunity now, even if they do not want to take it. Back in the days of the so-called tap on the shoulder, when a barrister would be quietly encouraged to apply for a particular post, they barely stood a chance.
Neil Rose is the editor of legalfutures.co.uk