Judicial Appointments
Committee Business
1:15 pm
Francie Molloy (Sinn Féin)
The Business Committee has agreed to allow up to one hour and 30 minutes for the debate. The proposer will have 15 minutes to propose the motion and 15 minutes in which to make a winding-up speech. All other Members who wish to speak will have five minutes.
Paul Givan (DUP)
I beg to move
That this Assembly approves the report of the Committee for Justice on its review of judicial appointments and the recommendation that there should be no changes to the current process for judicial appointments and removals in Northern Ireland at this time; and endorses the intention of the Committee to undertake a further review of the judicial appointments and removals processes.
The Justice Committee undertook the review of judicial appointments in accordance with Standing Order 49A, and I thank Committee members for their constructive approach and contributions to the review.
Members will be aware that the Northern Ireland Act 2009 made amendments to the process of judicial appointments and removals as set out in the Judicature (Northern Ireland) Act 1978 and the Justice (Northern Ireland) Act 2002 as amended by the Justice (Northern Ireland) Act 2004. The 2009 Act also stated that Standing Orders should require one of the Assembly Committees to review the operation of the amendments made to the judicial appointments and removals processes by schedules 2 to 5 to the Act and to report on the review, including any recommendations for change to way in which judicial officer holders are appointed and removed, by 30 April this year.
Initially, the review was to be undertaken by the Assembly and Executive Review Committee. However, following the devolution of policing and justice powers, an agreement was reached that responsibility for the review should pass to the Committee for Justice, and Standing Orders were subsequently amended on 28 November 2011.
Given the limited time available in which to complete the review, the Committee agreed to undertake a targeted consultation with a range of key stakeholders, including the Northern Ireland Judicial Appointments Commission (NIJAC), the Lord Chief Justice, the Northern Ireland Judicial Appointments Ombudsman, the Attorney General for Northern Ireland, the First Minister and deputy First Minister, the Minister of Justice, the Law Society, the Bar Council, and the political parties and independent Members in the Assembly. The Committee received eight written submissions and held three oral evidence sessions. I place on record the Committee’s appreciation to all those who contributed written and oral evidence to the review.
The oral evidence sessions were with the Attorney General, the Lord Chief Justice in his capacity as chairman of the Northern Ireland Judicial Appointments Commission and other representatives of NIJAC, and the Northern Ireland Judicial Appointments Ombudsman. Those sessions raised some interesting issues and provoked some lively discussion.
The Committee was also aware that the House of Lords Constitution Committee was undertaking an inquiry into the judicial appointments process for the courts and tribunals of England and Wales and Northern Ireland and for the UK Supreme Court, and that the Ministry of Justice had just completed a consultation on appointments and diversity relating to the judiciary in England and Wales. The Committee kept an eye on the developments around those.
To meet the 30 April deadline for the completion of the review, the Committee confined its deliberations to a small number of issues, some of which I will now address. One issue that arose was the involvement of Ministers or this legislature in the Northern Ireland judicial appointments and removals process. The Committee considered whether the balance of power in relation to the processes has moved too far towards the judiciary and non-elected bodies and away from politicians. Although mindful of the reasons for the current position, the Committee noted that full responsibility now sits with NIJAC and elected representatives play no part in the process.
NIJAC also plays a key role in deciding on the maximum number of persons who may hold a listed judicial office at any one time. Although NIJAC must agree the maximum number with the Department of Justice, the Committee’s view is that that is an unusual responsibility for such a body to have.
Given that there appears to be some perception, which was reflected in evidence received by the Committee but refuted by the chairman of NIJAC, the Lord Chief Justice, that NIJAC is dominated by its judicial members, it raised some questions that were discussed with the Attorney General, who said:
“One can speak of it as a constitutional issue of a hermetically sealed circularity of judges largely appointing judges.”
The Committee also highlighted the fact that, in any other consideration of where power should reside in relation to judicial appointments and to what extent, if any, political representatives should have a role, a distinction should be made between involvement in the selection process and involvement in the appointment process. The Committee is also of the view that NIJAC should reflect on the challenge of addressing any perceptions that might exist.
One of the criticisms levelled about the appointment process for appeal judges was that appointments have been based on seniority. The 2009 Act introduced a change in the appointment process for appeal judges; however, the new process has not yet been used and no new appointments have been made.
The Committee believes that all judicial appointments should be based on merit and is strongly of the view that the merit principle must apply to any appointment process for appeal judges or the post of Lord Chief Justice. In that respect, the Committee supports NIJAC’s position, as articulated by its chairman, the Lord Chief Justice, who indicated that, when consulted by the Prime Minister on the appointment process, NIJAC will inevitably recommend that the appointments should be made on merit and that there should be a process to ensure that appropriate candidates can apply.
An area that the Committee is very concerned about — I know that other Committee members will wish to address it in the debate — is the fact that, despite the requirement that NIJAC must engage in a programme of action to ensure that, so far as it is reasonably practicable, judicial appointments are reflective of the community in Northern Ireland, that has not been achieved in the higher court tiers with regard to female representation. Although the current Lord Chief Justice and his predecessor, Lord Kerr, expressed their disappointment regarding that situation and NIJAC recognises that it is an issue that needs to be addressed, the Committee is disappointed that no progress appears to have been made in tackling that long-standing issue.
The Committee has recommended that NIJAC must take forward the programme of work that it outlined in its evidence to this review as a matter of urgency and that it must give appropriate priority to this matter. We have highlighted several areas worthy of further consideration and intend to review what progress is made in this area in the future.
Another issue that arose during the review was the delivery of the functions of the Judicial Appointments Ombudsman. The Department of Justice is currently considering alternative options for the delivery of the functions of the Northern Ireland Judicial Appointments Ombudsman, so that is an area that the Committee will return to in due course. The Committee has recommended that, when considering other options, the Department of Justice should take account of the views expressed by the Judicial Appointments Ombudsman in his oral evidence to the Committee and, in particular, if consideration is being given to having one justice ombudsman, the current legislative requirements that stipulate that the Judicial Appointments Ombudsman appointee should not be a lawyer nor have sat in a judicial capacity.
The Committee noted that the Northern Ireland Judicial Appointments Ombudsman’s role is relatively narrow, allowing him to look only at complaints from individuals who have participated in the selection process and preventing him from investigating thematic complaints, looking at wider issues or dealing with complaints from individuals on behalf of someone else. That is an issue that the Committee may return to in the future.
In conclusion, having considered the evidence received — taking account of the fact that the Department of Justice and NIJAC are of the view that the arrangements created by the 2009 Act, although in place for only a relatively short period of time, appear to be working satisfactorily — the Committee has recommended that there should be no changes to the current process for judicial appointments and removals in Northern Ireland at this time. However, the Committee is of the view that there are a number of issues, some of which I have highlighted today, that may merit further consideration. Therefore, we intend to undertake a further review of the judicial appointments and removals process.
At this point, Mr Principal speaker is in charge of proceedings of the House of Commons in..." class="glossary">Deputy Speaker, I thank our Committee staff for their work on behalf of the Committee. The Justice Committee is a very busy Committee. We took this work on from the Assembly and Executive Review Committee, and we were able to put it through the Committee in the time that had been stipulated. I thank the staff for the work that they carried out under Christine Darrah in her role as Clerk of the Committee.
Taking off my hat as Chairman of the Committee, I will speak now in my capacity as a DUP Member. The reasons why the changes in the 2009 Act took place were evident at the time. The party gave the reasons why those changes were necessary at the time. Very clearly, it was because of our concerns in respect of the role that Sinn Féin may have in the appointment and removal of the judiciary. One does not need to go too far into our past to remember when the IRA targeted members of the judiciary; one example being Lord Justice Gibson and the attack that led to his death. Obviously, we had very clear concerns, and changes were then included in the 2009 Act as a result of those. Clearly, the political context in Northern Ireland has led to the changes that have happened. That makes it very difficult for changes to the current system to take place. That having been said, this has given the judiciary a very insulated, protected and privileged position from the political process. That is not an ideal position in a normal democracy. Given the lack of accountability to the people through their politicians, it requires the judiciary to exercise its functions with great care, particularly when making decisions that challenge the Executive.
A number of submissions were made to the Committee that highlighted the movement of the judiciary away from politicians that has occurred across the United Kingdom. That has been flagged up. In 2001, Sir Thomas Legg QC, former permanent secretary to the Lord Chancellor, said that:
“appointing judges is not merely a technical and professional exercise ... It is a political act in the broad sense and it should be the responsibility of a political authority. In our constitution that means accountable Ministers.”
That was written prior to the establishment of judicial appointments commissions in England and Northern Ireland. In 2011, with regard to the 2005 Act, Sir Thomas Legg said that it:
“strikes the balance of roles and powers too far towards the judges and too far away from the Executive”.
It begs the question of what the role is for politicians. It is my view, and the view articulated before the Committee by the Attorney General, that it is the politicians who create the law that governs and seeks to protect our society. The judiciary implements that law. There is a view amongst some that the judiciary is superior to the politicians in respect of this constitutional position. However, in evidence, the Attorney General said:
“There has been a shift — in some ways, an understandable shift — and emphasis put on the role of the judiciary. Members of Parliament and legislatures are, as Sir William Blackstone said, ‘guardians of the constitution’ and have a vital role in that regard. We downplay that role as a community, ultimately, at our peril.”
Sir Declan Morgan, the Lord Chief Justice, in his role as chairman of NIJAC, asked:
“what will politicians bring to selection on merit in a better way than experienced human resources people”?
Very clearly, the answer is accountability. I agree with Lord Justice Etherton, who said in evidence to the Select Committee on the Constitution:
“At some point and in some way the executive or Parliament, or both, must be involved, if only, and at the very least, in the appointment of people other than judges who themselves undertake the selection.”
The pendulum of the political accountability of our judicial appointments process is at the extreme end: it is divorced from the executive and the legislature. I have made it clear why that reason is the case, and I support that reason as to how it has come about, given the past of Sinn Féin in our troubled times. However, in other western democracies — for example, the United States — politicians have a very direct role, and in many states judges are directly elected by the people, giving them the strongest authority from the people to act. It is necessary, and indeed a duty, for politicians in Northern Ireland to have a close scrutiny of our judicial system to ensure that the people can have confidence in the judiciary.
Having said that, I support the motion. I have outlined clearly the context as to why the changes took places in the 2009 Act. That context has not changed and, therefore, we will not be supporting changes to that Act. Nevertheless, in a normal democracy, there are issues that a normal democratic institution would be able to consider but sadly, in Northern Ireland, we do not have that.
Tom Elliott (UUP)
I thank the Chair of the Justice Committee, Mr Givan, for bringing this forward.
Clearly, this is something that came about at reasonably short notice and had to be carried through on a reasonably short and sharp timescale. Obviously, some of the issues that have been raised by Mr Givan are relevant to the process. I do not say that we were amused by it, but one thing that heightened the interest of many of us was the difference of opinion between the Attorney General and the Lord Chief Justice.
I note the issues around the Attorney General’s point about the interview process. He was indicating that it may not necessarily be the best way of making appointments. You could say that even about the Civil Service, if you wanted to, or about any public appointment. You do not always get the best person just because you have what is termed a “competency interview process”. There is quite often much more to the individual than will be brought out at the interview process. Though I accept that, you must have a means and mechanism for carrying out the process. Obviously, I have some degree of sympathy with that but, if it is going to be for the judicial system, it needs to be on a much wider base as well. I respect and accept the independence of appointments for the judiciary because, if you bring that into the political domain, it will become political, and I have significant concerns about that. Obviously, independence is very important.
I would be concerned if there were any indication that NIJAC operated some sort of two-tier system, whereby the judiciary and the lay people in NIJAC were of completely different opinions. However, I do not believe that that is right. I believe that the system co-operates reasonably well together and that it is a good mechanism for taking the process forward. The Ulster Unionist Party supports the current process. That is not to say that we are not open to continual review and looking at it again in the future; we are quite happy to do that. But, as it stands, it needs to be clear that we want the independence of the process to remain. We do not want any indication of there being two-tier system.
It is important that we continue to hear the opinions of the Lord Chief Justice and the Attorney General. We should try to find a mechanism to bring their thought process closer together or to streamline it to some degree. I hope that the Committee can play a role in that. Irrespective of where the responsibilities ultimately lie, the Department of Justice has a clear role and responsibility. I hope that that will continue.
You know where that would get you. In any event, it was good work that was well done in proper time. The House should note that, at the same time, we were conducting another inquiry into witnesses and victims. It was an enormous amount of work. I echo the Chair’s congratulations and thanks to the Committee staff for their very hard work throughout the inquiry.
The Chair very usefully highlighted most of the pertinent issues. He referred to the pendulum in relation to judicial appointments swinging away from political involvement and towards a very neutral situation. That was done for very understandable historical reasons. I am not at one with him on the reasons that he quoted. Nonetheless, for historical reasons, the appointment of judges has been moved to an independent body, and I think that all of us are supportive of that. The question is whether, in the future, there should be any change. I do not see any change in the immediate future, but we should not rule that out absolutely. The stripping away of even the most vestigial involvement of the First Minister and deputy First Minister and the Assembly in the appointment — as opposed to the selection — of judges may or may not be a good thing; I just do not know. Certainly, however, in the criminal justice review of 2000, it was suggested that the Office of the First Minister and deputy First Minister would have at least a symbolic role in appointments. If we are to become a mature democracy, it may well be that we move to such a situation. There may well be more political involvement, as there is in other healthy political jurisdictions.
Mr Larkin, the Attorney General, raised a number of interesting points. When talking about NIJAC, he said:
“there is at least a danger of the creation of a self-perpetuating mandarin class of judges appointing themselves. Appointing very clever people, bright people, very accomplished lawyers, but doing so in a way that is, to all intents and purposes, immune from broader constitutional scrutiny.”
He also said:
“There is absolutely no impairment of judicial independence or impartiality caused by the appointment being made by the executive and that appointment by the executive being accountable to the legislature.”
It is interesting that he unilaterally raises that issue. The Lord Chief Justice had an opportunity to respond to that and to questions put by the Chair and me. Sir Declan Morgan did not rule out some legislative involvement. On page 52 of the report, he said that:
“Having some legislative involvement is not necessarily contrary to the fundamental principles of judicial independence. However, I wonder what the legislature would bring.”
The Chair has answered that point; he said that it would bring an element of accountability to the appointment process.
These are interesting arguments, some of which remain unanswered. We will return to this as a Committee, as will the Assembly, but I think it has been a useful exercise. We came to the conclusion that —
Paul Givan (DUP)
I thank the Member for giving way. Will he comment on the difference of views held by Lord Kerr and Lord Etherton in regards to political involvement?
I thought that Lord Etherton’s remarks were very interesting; he was on the side of having some greater political involvement. Lord Kerr took a more extreme position by saying that we do not really want politicians next to or near the judicial appointments process. Perhaps that is understandable coming from a senior judge who probably sees political involvement as a threat. Is it a threat or is it a challenge that the judiciary will just have to deal with, and does it add something materially to the appointments process? That question remains unanswered, as the Chair of the Committee has said, and most of the Committee were of that mind. It has to be said that the —
I will indeed, Mr Principal speaker is in charge of proceedings of the House of Commons in..." class="glossary">Deputy Speaker. In conclusion, it has to be said that the arrangements are working satisfactorily, and I think that this is a good report to make to this Assembly.
Stewart Dickson (Alliance)
I thank the Chair of the Committee for the way in which the business was conducted, and the staff and others who supported us and came to the Committee with evidence. As the Chair highlighted, the Committee is generally satisfied with the current situation. I genuinely believe that Northern Ireland Judicial Appointments Commission (NIJAC) is doing a good job, and that it is producing the right judicial appointments in Northern Ireland.
However, there is one area that raised a matter of concern. Others have referred to the level of future political involvement, but the current issue is the lack of representation of females, particularly in senior appointments. It is an area that I believe needs to be addressed to give the appropriate balance in the judicial process.
The argument that we were given was that it was difficult for females gain the appropriate length of experience in court time as many of them will take a break for family and maternity reasons. However, I genuinely believe that we must break away from what is perceived as, if not an old boy’s network, then certainly a very male-dominated profession and area in respect of those who hold those judicial appointments.
Greater efforts need to be made to ensure that there is appropriate female representation in judicial appointments in Northern Ireland. We should not have an area that is exclusively or predominantly male in that respect. Appointments should be made on merit, and I believe that there are as many women as men in the judicial system capable of holding those positions. Although I support the report, I want to flag up that area of concern and would particularly encourage NIJAC and those in the profession to see what can be done to encourage appropriate female representation.
As for the future, I think that the Committee agrees that it needs to re-examine what level of political involvement there should be, whether it is the token involvement that Mr Maginness made reference to in that the appointment is simply ratified by the First Minister and the deputy First Minister, or whether there should be some form of hands-on involvement in that process. That remains to be seen. That is a debate for another day, but, at this point, I am satisfied to support the report.
Peter Weir (DUP)
I join others in welcoming the report and in thanking the Chairperson and the Committee staff for the examination. As has been indicated, time was limited. However, in going through the evidence and reaching conclusions, I was struck by the lack of a convincing case for very fundamental changes. A number of issues were raised across the spectrum, nuances arose and changes were suggested for the future, but there was no overriding desire either outside or inside the Committee for something fundamentally different to what had been arrived at. The lack of proposed changes is perhaps a salutary lesson for some who, two or three years ago when the devolution of justice was proposed, predicted, particularly on the judicial front, that the sky would fall in. It seems that we have not seen a radical change, and, indeed, some of the fears that at the time were raised — “manufactured” may be a better word — clearly have not materialised.
I will touch on a few aspects of the report. The role of elected representatives has been concentrated on, and I agree with Alban Maginness when he says that it is fairly clear that no one can envisage a fundamental change on that side in the foreseeable future. On the longer-term debate on whether the pendulum should swing, I tend to be on the reasonably sceptical wing and much closer in position to that of the Lord Chief Justice than that of the Attorney General. I have to be careful at this stage not to be too critical of the Attorney General, as I do not want to end up up on any criminal charges because of my speech. However, we need to tread very carefully. The Attorney General mentioned the situation in America and Germany, and political involvement there has not been an unalloyed success. We have to careful about the danger of getting political appointees or, indeed, judges looking with one eye to satisfy political masters. When we decide precisely where that pendulum will be, we need, at all costs, to ensure that the —
Peter Weir (DUP)
In a second. We need to make sure that that form of judicial independence is protected.
Peter Weir (DUP)
I agree, and that issue is tackled in the report. I am concentrating particularly on paragraphs 107 to 109, which are on the role of elected representatives.
Mr Dickson raised the issue of female representation, and the overall balance is a problem. However, when looking at how we solve that, I was struck by the statistics that showed a vast differentiation between the number of females who enter the legal profession and those who are still in it at 30 or 35. We need to look at the mechanism and at whether there are any barriers that mean that females, in some way, feel forced out. That seems to be the key point in tackling that. Nobody came forward with any evidence to suggest that there was direct discrimination or that people were not being selected on merit. However, over the past 20, 30 or 40 years, the profession has become a lot closer to being gender-balanced. In time, we need to reflect that in the overall process.
There has been some criticism that the composition of NIJAC is too judge-heavy. It is important that judges be appointed fully on merit, and I am struck by the need to have that level of professional input. I have met the representatives of NIJAC who were there as lay members, and they are very impressive individuals. They may not have the judicial or legal background, but they are experts in HR and in a range of other activities, and they can and do make a very valuable contribution to NIJAC.
It is also important to note that, when the issue of sponsoring Departments was raised, nobody from NIJAC or the Department of Justice seemed to want to shift that position. From a practical point of view, there is a feeling that the oversight function in the sponsoring Department works well, and I think that that needs to be maintained. There has been mention of the suggestion that the functions of the Judicial Appointments Ombudsman be merged with those of other ombudsmen and that those offices should, effectively, be rolled into one. However, given that the Judicial Appointments Ombudsman needs to be seen as completely independent from the judiciary, that would not be appropriate.
We are missing at least one voice today: Mr Wells, a member of the Committee, is not here to give his unique perspective on the legal profession. Had Mr Wells been here, a strong argument may have been made for politicians not having involvement in judicial appointments.
Broadly speaking, the report shows that the current system is largely correct. We will need to return to this and, given the limited amount of time the Committee had to undertake its review, it flags up the need for a much deeper examination of the system in the future. I welcome the report and believe that it points to a positive way of protecting judicial independence, at least for the time being.
Sydney Anderson (DUP)
As a member of the Justice Committee, I support the motion and encourage all Members to approve the Committee’s report on its review of judicial appointments. At the outset, I express my thanks to the Chair and the Committee staff for their work on the review.
I am aware that in a debate such as this, there is a high risk of repetition. I do not intend to go over too many points; I could perhaps be classed as a repeat offender if I did. Therefore, I will keep my remarks to a minimum. In the short time that was available to the Committee, we took stock of the operation of the judicial appointments process, as amended by the Northern Ireland Act 2009. As Members will be aware, the Assembly and Executive Review Committee was initially asked to undertake the review. However, after the devolution of justice powers, it was agreed that the Justice Committee should take over that work. Members will also be aware of the tight deadline. We agreed our terms of reference a short time ago and had to complete our work by 30 April. In light of that timescale, we decided to engage in a targeted consultation with the key players and to publicise our work on the Assembly website.
The process of judicial appointments has undergone fairly radical change across the United Kingdom in the past decade or so, and we are aware of the review by the House of Lords. One of the key aims of any judicial reform must be to ensure that the public can have the utmost confidence that the judiciary is completely independent and free from any outside interference. That is fundamental to the preservation and promotion of our constitutional liberties.
The main driver for change in Northern Ireland was the report ‘Review of the Criminal Justice System in Northern Ireland’ in 2000, which recommended the establishment of an independent commission to oversee appointments from the level of High Court judge downward. The result was the creation of the Northern Ireland Judicial Appointments Commission in 2005. NIJAC has a vital role, as it is required to ensure that judicial appointments are based solely on merit. We all aim for that. The Northern Ireland Act 2009 extended NIJAC’s remit, and it is now a recommending body for both Crown and non-Crown appointments. As I said, the judiciary must be totally independent of any interference and must be seen as such. Therefore, the Committee supports the 2009 provisions, which require that judicial appointments and removals should be the responsibility of NIJAC, and not OFMDFM as was envisaged in 2002.
The current arrangements are not perfect by any means. They arose from the particular experiences of Northern Ireland and the problems that would arise from political input. However, there may be a cheaper, more efficient and accountable mechanism that could and must be considered at some stage in the future.
The Committee was also concerned that the judiciary is still very much a male preserve. That has been mentioned today. The Committee agreed that we should look at that issue in the future and perhaps make some progress on it.
The Committee is grateful to all those who took the time and effort to meet us and to those who made written submissions during our targeted consultation. In view of the overall responses to our review and the limited timescale, we felt that the best way to proceed would be to recommend no change to the current arrangements at this time. That is not to say that we have parked the issue; that is far from being the case. As the motion makes clear, more work needs to be done, and I imagine that it will be done in the coming months and years. Meanwhile, I ask the House to support the motion.
Jim Allister (Traditional Unionist Voice)
I broadly support the motion because it holds to the present position, which is not perfect — I will say more about that in a moment. However, it is certainly a huge advance on where the legislation stood when, outside the House, I began to raise issues about the content of the Justice (Northern Ireland) Act 2002 and the Justice (Northern Ireland) Act 2004, which would have seen an IRA commander as deputy First Minister with the facility to help in the appointment and removal of judges and in the recommendation of who would become a judge.
Of course, there are those in the House today who cannot admit or ever concede that I had any influence whatsoever when I first raised such issues, and who, when I first broached the subject in their party, were more interested in filling out their sudoku than in looking at the content of the 2002 Act. It is because I am making these points that, although not originally down to contribute, Mr Poots will speak in the debate.
Expert at sudoku as he was, he well knows that he was far more interested in those puzzles than in listening to what the 2002 Act and the 2004 Act meant for the Office of the First Minister and deputy First Minister. I take some credit that, ultimately, the Northern Ireland Act 2009 was amended to remove the bulk of those parts. It did not remove the power that allows OFMDFM to nominate people to the body that appoints judges — the Judicial Appointments Commission. It ought to have done that, because there is no nexus between OFMDFM and the judicial process, nor should there be. Where there is one, the nexus is with the Department of Justice. Therefore, it is the Department of Justice and not OFMDFM that should have the power to appoint people to the Judicial Appointments Commission.
I want to comment on where we are perhaps going in future. I have listened carefully to those who are obviously itching and anxious to get more political involvement; they call it “accountability”, but it is really a creeping politicisation. They refer to the fact that in America judges are elected: preserve us from such a politicisation of the judiciary. Yes, it is not perfect that judges appoint judges through the Northern Ireland Judicial Appointments Commission. However, that is by far the best arrangement attainable, because you need to know what the job of a judge entails from experience before you appoint others.
I shudder at the thought that OFMDFM or the Department of Justice having the power to make such appointments. That would be a very retrograde step indeed; it would result in a corrupting of the judiciary. We would be in the same situation as the Irish Republic, where Fine Gael judges and Fianna Fáil judges were appointed when their respective parties were in government. The judiciary is now, more and more, dealing with issues that touch on government policy and decisions. If we are to maintain the independence of the judiciary, we must expunge from the Executive any political involvement in the appointment of judges. If we create the situation where judicial review after judicial review is examining the rights and wrongs of an Executive decision, the process would be corrupted, or would have the appearance of being corrupted, if those making judicial review decisions are appointed by the Executive or subject to removal by the Executive. So, in the interests of the independence of the judiciary, it is very important that we maintain as great a distance as possible between the Executive and the judiciary.
I certainly do not want to see any terrorist-inclusive Executive ever having that role in respect of our judiciary.
I will comment on the support in the report for the application of the merit principle to the Court of Appeal. I agree with that, but in the context that there is another principle about judicial appointments, which is that they must be reflective of the community. We are already in the position where the three key legal posts of Lord Chief Justice, Attorney General and Director of Public Prosecutions all come from the one community. We need a counterbalance, as well as appointing on merit, to ensure that our Court of Appeal, the highest court in the land, is reflective of the community.
Jim Allister (Traditional Unionist Voice)
Let us not forget that. It would be a backward step if we were to end up with a Court of Appeal that is not reflective of the community that it serves.
Edwin Poots (DUP)
I have a document from the Traditional Unionist Voice. I know that we are not allowed to display documents in the House, but, the document, which, I assume, Mr Allister had some role in writing, identifies how Martin McGuinness would have control over the judiciary. I suggest to Mr Allister that, if he ever chooses to do something else in life, he does not take up the role of Mystic Meg, because he does not very often get it right, and I suspect that he would not get much business on that front. Perhaps people do not always give as much attention to Mr Allister as he would like because he does not often get it right in the first instance. He has not got it right today either when he talks about the judiciary in Northern Ireland.
Clearly, we have decided to go down the route that we have because of the past in Northern Ireland. We have a system where we do not appoint judges through the political process, and that is different from the rest of the kingdom. I note that Mr Allister wants a degree of separation from the rest of the kingdom in that he wishes to have judges appointing judges in Northern Ireland but not in the rest of the United Kingdom.
Jim Allister (Traditional Unionist Voice)
I am very happy that the Prime Minister makes the recommendations after consultation with our Lord Chief Justice and our other senior judges. I am very happy that we maintain the unity of the United Kingdom.
Edwin Poots (DUP)
That is not what Mr Allister was saying earlier. He was very critical of the role of politicians in the appointment of judges, yet he is just after saying that it is all right. If one goes back to Hansard, one will identify that Mr Allister, throughout his speech, did not indicate that that was the case at all.
As part of the checks and balances and democratic accountability throughout the process, a strong judiciary is very important for a strong democracy and vice versa. In the checks and balances that we have now, the scales are tipped very heavily in favour of the judiciary vis-à-vis the democratic system. That places a greater incumbency on the judiciary to carefully exercise its very significant powers. It is not the judiciary’s role to overturn decisions that it does not like; it is the judiciary’s role to ensure that the law is upheld. Nor is it appropriate for the judiciary to be striking down decisions that have been arrived at rationally and, indeed, reasonably on the basis of some technicalities. The judiciary needs to reflect upon that and respect that.
Being a Minister does not make one perfect, and nor does going into a studio as a journalist or a broadcaster make those individuals perfect. Indeed, when a very able Queen’s Counsel dons a wig and sits on the bench, that does not make them perfect. We reserve the right to criticise the decision of judges. Judges can be very wise, but that does not make them infallible. They can be very knowledgeable, but that does not make them omniscient. They can be very powerful, but that does not make them omnipotent. Those powers all lie with another judge, whom we will all face one day. We reserve the right to challenge decisions that we do not believe to be good decisions. Last week, indeed, our Director of Public Prosecutions was in conflict with the courts over a decision that was made. On balance, from what I have heard thus far, I am with the Director of Public Prosecutions on the issue that was involved. The law was not fully and, possibly, properly observed in that particular decision-making process.
The Executive have been elected, through the Assembly, to govern. Judicial authority that diminishes the ability of the Executive or, indeed, the Assembly to carry out their role of governance is something that should be exercised with extreme caution. For example, the Executive’s number one priority in the last mandate was the economy. That was tested through the Programme for Government. We had all of the consultations, and the commitment was made. However, when Ministers, Departments and arm’s-length bodies went about delivering on that commitment, they were, on occasions, undermined by judicial decisions. That was undermining the will of the people of Northern Ireland. That is something, therefore, that we need to be very careful about in the future.
We will have to continue with the system that we have, because of the nature of politics in Northern Ireland. Nonetheless, we need to make it very clear today that, in the delivery of judicial powers, full and proper respect must be given to the politicians and elected Government of Northern Ireland so that they can carry out their duties in a very open, honest and frank way on behalf of the people of Northern Ireland, with as little judicial interference as possible.
Jennifer McCann (Sinn Féin)
Go raibh maith agat, Mr Principal speaker is in charge of proceedings of the House of Commons in..." class="glossary">Deputy Speaker. First, I thank the Committee, as the Chairperson did, particularly the Clerks, for putting the report together.
The report represents the fulfilment of the requirement under Standing Order 49A for the Committee for Justice to complete a review of the operation of the amendments made to the judicial appointments and removals processes. As indicated by the Chairman, the Committee, having considered the evidence received, has recommended that there should be no changes to the current process for judicial appointments and removals at this time.
However, the Committee is of the view that there are a number of issues, some of which have been highlighted in Members’ contributions, that may merit further consideration. Therefore, the Committee intends to undertake a further review of the judicial appointments and removals processes.
I turn first to some of the comments by Members before I make some comments from my perspective and that of my party. The Chairman outlined the key issues considered by the Committee. He also set out the context for the current position and highlighted the way that the appointment process has swung towards giving the power to the judiciary, citing the evidence of that that was given to the House of Lords Constitution Committee’s inquiry. He said the political role would introduce accountability.
Tom Elliott noted with interest the difference in opinion between the Attorney General and the Lord Chief Justice. He also highlighted some concerns about the likely impact of political involvement.
Alban Maginness did not see any need for immediate change to the process, and outlined the fact that the appointment of judges has been moved to an independent body for historical reasons, which is an important point.
Stewart Dickson also noted the general satisfaction with the current system but acknowledged the benefit of having a debate on the future. He highlighted the lack of female representation at the higher tiers and the need for NIJAC to address that.
Peter Weir highlighted the fact that there is general satisfaction with the current system, according to the submissions made to the Committee, and the fact that there is no overriding desire for change. He also referred to the lack of female representation at the higher court tiers. He indicated that he did not feel that there was discrimination there but said that the issue needed to be explained and explored.
Jim Allister, although broadly supportive of the motion, again used it to show his impartiality, in that he did not object to political interference as long as it was British political interference; he did not want any political interference from elected representatives in the North. Edwin Poots noted that the checks and balances are tipped in favour of the judiciary and that a strong judiciary is important. However, he wants to reserve the right to criticise judges. Those were the comments of individual Members. It was a good debate in which Members gave their opinions.
I will speak now as a Sinn Féin member of the Justice Committee. NIJAC is currently responsible for judicial appointments. It is chaired by the Lord Chief Justice and has a mix of judicial, legal and lay members. The Committee heard from some of those lay members during its inquiry — sorry.
Jennifer McCann (Sinn Féin)
It is a statutory duty to engage in the programme for action to ensure that the judiciary in the North of Ireland is reflective of society. What is really important is that the judiciary is not only independent and transparent but reflective of all society.
I will touch on some of the issues raised, particularly the lack of female representation in the higher tiers of the judiciary. Approximately 43% of the judiciary are women. Although women make up over half of lay magistrates and district civil judges, which are in the lower tier of the judiciary, none are High Court judges. Women County Court and District Magistrates’ Court judges do not make up even one quarter of the quota. The underrepresentation of women is a very serious issue. It may not be discrimination, but NIJAC and other training organisations need to take it on board because gender inequality is a real problem.
Peter Weir (DUP)
I thank the Member for giving way. Does the Member agree with me that one concern arose when, on a separate issue, the Committee got the list of the main recipients of legal aid and found that only one of the top 50 on the Bar side was female?
Jennifer McCann (Sinn Féin)
We listened to the people who came before the Committee. Although we are not saying that there is any discrimination, we are saying that the issue has to be resolved and that there has to be equality. Women make up 52% of the population, yet there is not one woman High Court judge. That is a real indictment of the judiciary as a whole.
There is also a glaring gap in respect of people from ethnic minorities. Only 1·35% of the judiciary are non-white. If we are really to have a true reflection of society, we need to get women and people from all community and ethnic backgrounds into those positions in the judiciary. The key issue is how we get an independent judiciary that is reflective of society. People can have different views on how that is achieved, but that is the important thing.
I thank Members for their contributions. I ask the Assembly to approve the recommendation of the Committee for Justice that there be no changes to the current process for judicial appointments and removals in the North and to endorse the intention of the Committee to undertake a further review of the judicial appointments and removal process. The key elements, which were highlighted in Committee, are the glaring gaps that I outlined. The judiciary is still not totally representative of all the community. It is very important that that changes.
Question put and agreed to.
Resolved:
That this Assembly approves the report of the Committee for Justice on its review of judicial appointments and the recommendation that there should be no changes to the current process for judicial appointments and removals in Northern Ireland at this time; and endorses the intention of the Committee to undertake a further review of the judicial appointments and removals processes.