The politics of assessment centres: Building diversity in the UK judiciary Gill Kirton, Geraldine Healy and Mustafa Ozbi

1. The politics of assessment centres:Building diversity in the UK judiciaryGill Kirton, Geraldine Healy and Mustafa Ozbilgin Paper to MMU Business School 19th January 2011 Centre for Research in Equality and Diversity (CRED)

2. Politics of assessment centres • Aim of study • To investigate the value of assessment centres for increasing diversity in the UK judiciary • Aim of talk • To put our investigation of judicial selection centres in macro and micro political contexts Centre for Research in Equality and Diversity (CRED)

3. Structure of presentation • Macro politics surrounding the introduction of assessment centres for judicial appointments • Micro politics of recruitment and selection, focusing specifically on assessment centres • Research methods • Research findings on assessment centres for judicial appointments Centre for Research in Equality and Diversity (CRED)

4. Macro politics of judicial selection • Demographic composition of judges pre-2005 • Dominance of public school, Oxbridge educated – over 80% had attended Oxbridge • White male domination – 18% women; 4% BME • Socio-political issues • Concern around public confidence • Concern around impact of judicial decisions on wider society • Concern around impact of judicial decisions on BME communities • Employment/HR issues • Job security of judicial post holders means once appointed, it’s more or less a ‘job for life’ Centre for Research in Equality and Diversity (CRED)

5. Macro politics of judicial selection • The work of judges – competing rationalities • Constrained autonomy • Intensity of case loads • Impact of political influences at different levels • Professional judgement versus political influence • Professional judgement versus consequential impact of decisions Centre for Research in Equality and Diversity (CRED)

6. Macro politics of judicial selection • Traditional recruitment and selection methods • ‘Secret soundings’ with serving members of the judiciary • Involved asking senior judges to rate performance of lawyers (mainly barristers) they had observed in court • Widely thought to preserve judicial independence • ‘Suitable’ candidates invited to formal panel interview with Lord Chancellor’s department Centre for Research in Equality and Diversity (CRED)

7. Macro politics of judicial selection • Peach Report 2001 charged with considering the appropriateness and effectiveness of: • a) The criteria for judicial appointments, and • b) The procedures for selecting the best candidates • The extent to which candidates are assessed objectively against the criteria for appointment • The existence of safeguards in the procedures against discrimination on the grounds of race or gender Centre for Research in Equality and Diversity (CRED)

8. Macro politics of judicial selection • Peach Report recommended ACs • The stated purposes were: • ‘To ensure that the most able, gifted and suitable people, who meet all of the criteria for appointment, are selected for judicial posts’ • ‘To introduce selection methods and procedures which are seen to be fairer, more open and transparent in which applicants, the legal profession and the public can feel more confident and which demonstrably support the Lord Chancellor’s policy statement on equal opportunities’ Centre for Research in Equality and Diversity (CRED)

9. Micro politics of judicial selection • What are assessment centres?‘ • A structured combination of assessment techniques that are used to provide a wide-ranging, holistic assessment of each participant’ (Garavan and Morley 1997:160). • The common features of assessment centres are: • Assessment in groups • Assessment by groups • The use of multiple techniques (e.g. ability tests, peer evaluations, performance tests) • The use of simulation and situational techniques (e.g. role-playing exercises); assessment along multiple dimensions (Garavan and Morley 1997). • Multiple methods become a proxy for predictive evaluation of subsequent job performance and therefore a more objective and valid basis on which to make appointment decisions (Iles 1992; Dayan et al. 2002; Tyler and Bernardin 2003). Centre for Research in Equality and Diversity (CRED)

10. Micro politics of judicial selection • ACs – a technocratic solution? • Clear rules for both recruiters and candidates • Greater processual and decision transparency • More accurate selection decisions based on ‘hard’ evidence • From a liberal equality perspective – reduces opportunity for recruiter subjectivity and bias Centre for Research in Equality and Diversity (CRED)

11. Micro politics of judicial selection • BUT, paradoxically ACs neglect macro and even micro political and social processes • The desired outcome was greater diversity, but do liberal equality (procedural) measures always achieve this? • A deep understanding of the socio-economic causes of inequality is not taken into ACs • Potential for the exercise of recruiter bias could remain Centre for Research in Equality and Diversity (CRED)

12. Research methods • Analysis of documentation: DCA internal documents, assessment centre (AC) guidance notes and application forms, assessors’ notes and evaluations, consultee (referee) reports • Listening to tape recordings of AC activities • Interviews with recent judicial applicants (both successful and unsuccessful): 11 Black and minority ethnic (BME) women, 9 BME men, 10 white women and 10 white men, only 3 Oxbridge graduates (39 interviews) • Interviews with AC assessors • Quantitative analysis of one judicial appointment competition involving 386 applicants Centre for Research in Equality and Diversity (CRED)

13. Selecting judges through ACs • Competency framework • Nine competencies identify both what is to be done and how it is to be done (the work of a judge) • Diversity is incorporated into some of the competencies • Application form – self-assessment against the nine competencies (non-professional, ‘life’ examples are allowed and in theory encouraged) • ‘Sift’ (shortlisting) process by panel • One-day Assessment Centre • Individual interview by mixed panel of professionals (HR and management as well as legal) • Legal case assessment – written test • Written test of legal knowledge • Role play – managing a court case Centre for Research in Equality and Diversity (CRED)

14. The dynamics of micro political control in assessment centres • Assessor practices and perspectives • Use of discretion – controlling and manipulating the interview and its outcome • ‘In ‘building relationships’ … sometimes you get a better response from women candidates, particularly when you ask, “members of the judiciary have sometimes been criticised for being too distant”, do you agree with that?’ ….. Usually then women come out much better ….. I try to get them off that and move them on somewhere else because that’s advantaging them.’ • ‘Well, again, if you ask them what they are doing in their community because, I think of an Asian candidate, telling me he was a member of Rotary wasn’t actually what I was looking for.’ Centre for Research in Equality and Diversity (CRED)

15. The dynamics of micro political control in assessment centres • Assessor practices and perspecitves • Use of stereotypes – influencing competency ratings • ‘Again, a complete mixture of response … many [women] are very, very good; quite surprising really. Some of them really empathise [with minorities]. But you would expect that, from their experiences and so on, you would expect them to be good.’ • ‘Most of them [BME candidates] weren’t the sort of black people that I would meet in my court. They were highly educated. Some public school, grammar school, graduates so that they weren’t ordinary and they’d never had to struggle with diversity because of their colour…’ Centre for Research in Equality and Diversity (CRED)

16. The dynamics of micro political control in assessment centres • Candidate perspectives • Main views on interviews • (Im)propriety of questions • Unevenness of ‘diversity questions’ • Assessor behaviour manipulating process and outcomes • ‘I don’t think any of the questions were inappropriate. I think the tone was occasionally inappropriate and I don’t know if it was deliberately trying to be confrontational, but I think it was slightly putting down, you know, so it wasn’t the questions that were inappropriate, it was the tone.’ (BME candidate) • ‘I find it strange that they would even have to ask the [BME] person about diversity issues, you know l live it, I live the life. So I don’t criticise the questions, it was part of the process, but I think it’s unnecessary, it’s like asking someone who is in a wheelchair how they can relate to other people in wheelchairs, why on earth would you need to do that?’ (BME candidate) Centre for Research in Equality and Diversity (CRED)

17. The dynamics of micro political control in assessment centres • Candidate perspectives • Final verdict on assessment centres • Procedural justice is served? • ‘I think the assessment centre approach is better because … somebody … with a less middle class type background doesn’t do so well in my view in these interviews. But it doesn’t matter who you are, if you’re going to be good at doing your job, you get the opportunity to demonstrate it in other parts of the assessment day.’ (Female candidate) • Only to some extent because subtle processes of bias and discrimination infuse the assessment centre • ‘I think the people who do best at the assessment centre are probably the criminal practitioners … Now, most of them are white and male, so in that sense it would prefer them because they are more able to deal with particularly some of the academic issues and the role playing, which I found terrifying.’ (Female candidate) Centre for Research in Equality and Diversity (CRED)

18. Do ACs lead to greater numerical diversity? • Based on analysis of one DDJ competition: • Women (both white and BME) more likely to be successful at the sift stage and also more likely to be recommended for appointment • Ethnicity did not have any influence at the sift nor at the AC stages • BME women had greater success rates at sift than BME men Centre for Research in Equality and Diversity (CRED)

19. Conclusions • ACs increase recruiter and to some extent candidate perceptions of procedural justice • Plenty to indicate that ACs are an improvement over ‘secret soundings’ • But, a single HR intervention cannot tackle wider relations of power that enter the micro processes of the AC or structural inequalities that influence the pool of ‘competent’ candidates • Even this purportedly more objective selection method allows ample opportunity for manipulation by designers and recruiters • ACs are social processes not places and competencies are socially constructed, not neutral and objective • Thus, political control at the micro level of ACs rests with recruiters and existing power holders from the design through to execution Centre for Research in Equality and Diversity (CRED)

20. Postscript • In 2007 the responsibilities of the DCA were passed to the Ministry of Justice and to the Judicial Appointments Commission • ACs are still in use • Candidate seminars are held to explain the application and AC process • Sample tests are provided on the website • Potential candidates can volunteer to take part in ‘mock’ ACs as part of assessor training • JAC data shows an increase in the appointment of women in most categories of judicial appointment post introduction of ACs and some increase in appointment of BME candidates • DDJ 2001/02 = 35% women and 5% BME; 2007/08 = 58% women and 8% BME Centre for Research in Equality and Diversity (CRED)