Audit report on Northern Ireland Court Service judicial appointments

FEBRUARY 2004

John Simpson

Commissioner for Judicial Appointments

for Northern Ireland

Headline Building

10-14 Victoria Street

BELFAST

BT1 3GG

27 February 2004  

Dear John

AUDIT REPORT

Thank you for your recent letters dated 18 December 2003 and 11 February 2004.

The Law Centre’s views on the issues that have yet to be agreed by Northern Ireland Court Service are as follows:

Requirements to register all current and past external interests

We believe this should be a requirement.  We do accept, however, that it should be made clear that past interests should not be an impediment to judicial appointment save in narrow and specified circumstances which impact on compatibility with acting as a judge (for example, membership of a race hate organisation).  All new and existing members should register their current interests in order to avoid the type of problem that arose around the conflict of interest facing Lord Hoffman in the first Pinochet case.

Open competition and other recruitment issues

We strongly believe that judicial appointments should be as reflective of society as possible.  This is currently not the case.  Moreover, best practice in terms of effective recruitment and selection, equality and openness should all operate.

We can see no reasons to restrict the pool of candidates to people with Northern Ireland experience.  It is difficult to see why a person with particular judicial or legal experience working in international legal jurisdictions (for example, Hague tribunal, European Court of Justice, ECHR or other jurisdictions) should be excluded from consideration. 

2.  27 February 2004

The vast majority of other senior public positions which require considerable judgement, integrity and great sensitivity do not restrict themselves in this way. 

It is best practice to require all candidates to complete a formal application.  Provision to allow an individual to be considered for a position at High Court or above without

making an application is bad practice and gives rise to a suspicion (rightly or wrongly) that an objective test of merit is not being applied.  An identified outstanding candidate could be encouraged to apply formally for a post and compete with other candidates.  This is common recruitment practice in other high profile positions of public importance.

We think it is imperative that monitoring community and other background is undertaken and that such information should be published.  This will create transparency, allow changes to be monitored effectively and inform any strategy to tackle under representation.  This will also increase public confidence that there is a will to effect positive change.  It is not immediately apparent why judicial appointments should be exempt from such monitoring.

We endorse the recommendation to introduce competency based training.

Referees and consultation

The current ‘soundings’ sought about candidates is wrong in principle, lacks openness and disadvantages candidates who are seeking an appointment but have not followed the traditional route of a career at the Bar.  This process has ended in Scotland and should shortly disappear in England and Wales.  The current arrangements put off candidates who have not followed the traditional route to appointment.  If government is serious about reform and genuine about opening up judicial appointments to a wider range of appropriately qualified people then, the current practice must cease immediately.  We are not sure why a nominated system should apply though candidates should be encouraged to name at least one figure of judicial authority in his or her list of referees wherever possible.

Interview and assessment

The selection process should be rigorous, multi-faceted and fair.  An interview should be essential for all posts and an assessment centre process developed (which may encompass role playing).  The Court Service should draw on best practice in other legal jurisdictions and also in recruitment for other senior public appointments where appropriate.

3.  27 February 2004

Deputy County Court judges

Stipulating a minimum number of days to be served and a review of the existing complement taking account willingness to sit etc would, in our view, enhance best value.  We would be willing to see the system commence and now cover only future periods so that any past period not subject to such a rule would not prejudice existing members.

Ongoing assessment

Judicial appointments should in general, be subject to greater accountability including regular appraisal and a more effective and open system for dealing with those who fail to perform adequately over a prolonged period.

Eligibility requirements

Lady Justice Hale has recently been appointed to the House of Lords following a distinguished legal academic career and a short but, effective spell as a judge.  As a result, we cannot see why others who possess the skills and ability to fulfill judicial office should not be allowed to compete effectively with those who have followed a more traditional legal career path.  Moreover, as the Access to Justice (NI) Order 2003 is committed to allowing public legal funding to be given to the not for profit sector this opens another non-traditional route to gain legal experience.  This route will create lawyers with experience in social welfare areas of law (an experience base and background sorely lacking among current judicial appointments in Northern Ireland).  In light of this we endorse recommendations to allow greater flexibility in the requirements and experience beyond changes made to the Justice (NI) Act.  The aim should be to attract the widest possible field of high calibre applicants from a number of different backgrounds.  Current arrangements militate against this goal. 

We strongly endorse the desirable qualities to include knowledge of social, cultural and gender issues.  Such an awareness is likely to enhance any judicial appointees ability to effectively do his or her job.  It also sends out an important message to applicants about the importance of such awareness.

Human Rights and equality legislation cuts across all areas of law and plays an increasingly important part role in the day to day work of judges.  A lack of commitment to be thoroughly familiar with human rights legislation would impair a

4.  27 February 2004

judge’s ability to do his or her job.  Becoming conversant with Section 75 is straightforward and should also be undertaken.

Northern Ireland is an increasingly multi-cultural society and diverse society and a formal commitment to diversity would send an important and contemporary signal about a more modern judiciary.  It would also be right in principle.

Conclusion

We are extremely disappointed with the Northern Ireland Court Service response to the audit recommendations.  In our view, the recommendations were moderate and represented an attempt to bring a more modern, open and accountable approach to judicial appointments.  Moreover, the recommendations would have widened the potential pool of eligible candidates and eventually produced appointments from a broader range of backgrounds, more reflective of the society the judiciary serves.  A wider choice is likely to improve the overall quality of judicial appointments and allay genuine and strongly held concerns about the fairness of current procedures.  The unwillingness of the Court Service to accept the recommendations sends out an

unfortunate message that the Court Service (or possibly the current judiciary) are unwilling to embrace change and evolve in ways that are frankly seen as normal and uncontentions in almost all other walks of public life.

I am happy to discuss these comments if helpful.

Yours sincerely

LES ALLAMBY

Director