The Maximum Number of Judges Order (Northern Ireland) 2020

Executive Committee Business – in the Northern Ireland Assembly at 5:45 pm on 14th December 2020.

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Photo of Naomi Long Naomi Long Alliance 5:45 pm, 14th December 2020

I beg to move

That the Maximum Number of Judges Order (Northern Ireland) 2020 be affirmed.

Photo of Roy Beggs Roy Beggs UUP

The Business Committee has agreed that there should be no time limit for this debate.

Photo of Naomi Long Naomi Long Alliance

The draft order will amend section 2(1) of the Judicature (Northern Ireland) Act 1978 to increase the statutory limit of High Court judges from 10 to 15. That legislative change will not, by itself, increase the number of judges who sit on the High Court bench. The draft order is, however, intended to allow for the future appointment of part-time judges and to create sufficient headroom for the addition of judges should pressures emerge.

A primary duty of my Department is to ensure that the High Court is, at all times, properly resourced to be able to meet its business needs. Both the Historical Institutional Abuse Redress Board and the newly constituted victims' payment board have appointed members of the High Court bench as presidents. That will inevitably impact on the availability of High Court judges to deal with High Court business. The Lord Chief Justice will want to make a case for additional High Court appointments to meet the capacity need. Allowing for that possibility requires an increase in the overall maximum. Creating sufficient headroom within the statutory limit will also allow for changes to the High Court complement to be made more efficiently without the need for repeated draft orders. It is also hoped that increasing the overall complement will more readily allow for future creation of part-time positions on the bench, adding to the potential pool of applicants for the High Court. Ideally, that will further increase diversity at that tier. Any increase in the actual High Court judicial complement will still have to be supported by individual business cases, taking into account the overall volume of High Court business whilst ensuring that funding is available for the additional salaries and pensions.

I thank the Justice Committee for its careful consideration of the draft order, and it is with the Committee's support that I bring this before you today. I commend the draft order to the House.

Photo of Paul Givan Paul Givan DUP

I am pleased to speak briefly to the motion on behalf of the Justice Committee. The Minister outlined details on the statutory rule before us, which will increase the maximum number of High Court judges from 10 to 15. That will allow for headroom for the addition of judges that may be required due to unforeseen circumstances. For example, the president of the Historical Institutional Abuse Redress Board is a member of the High Court bench, which has decreased the number of judges who are available to deal with High Court business. The rule also will allow for the appointment of part-time judges, which could potentially increase diversity at that tier of the judiciary, and the Committee would welcome that.

At its meeting of 22 October, the Committee agreed that it was content with the proposal to make the rule. The statutory rule was subsequently considered at the meeting of the Committee on 3 December, when the Committee noted that the Examiner of Statutory Rules had no comment to make by way of technical scrutiny and agreed to recommend that the statutory rule be affirmed by the Assembly. I therefore support the motion on behalf of the Committee for Justice.

Photo of Emma Rogan Emma Rogan Sinn Féin

This statutory rule will increase the statutory limit on the number of High Court judges from 10 to 15, which will allow for the appointment of part-time judges. As has been said, that will allow for headroom where judges are required for unforeseen pressures and circumstances. We have read and heard statistics being rehearsed over the last number of months that have made it clear that COVID has increased the backlog of cases that are waiting to be heard across all court divisions. Although that increase is concerning, concern about the backlog of cases waiting to be heard existed prior to COVID. There is a major need to increase the speed at which cases are heard and progressed, and key to that could be increasing the number of High Court judges who are available for trials.

The statutory rule will not, in itself, increase the complement of High Court judges; it merely increases the statutory limit. I encourage the Department to carry out further work to examine whether there is scope to increase the High Court judicial complement and to assess the impact that that would have on the speeding up of justice. The Department needs to do all that it can to recruit additional judges to ensure that the diversity of the judiciary is increased.

My party supports the motion.

Photo of Jim Allister Jim Allister Traditional Unionist Voice 6:00 pm, 14th December 2020

The Minister points out that the order increases the saving but not the number of appointments. I presume that the situation will prevail that, for any additional judges above 10, a business case will need to be approved by the Department. However, an increase of 50% is substantial.

I did not follow the Minister when she said that it would enable the appointment of part-time judges. Back in January, we appointed, I think, eight or 10 part-time judges, so that facility exists. What is the juxtaposition between the order and the appointment of extra part-time judges?

Some of the legacy issues giving rise to increased pressure are being dealt with by County Court judges. Is the Minister minded to increase the number of appointments in that domain and, if so, to what extent?

The Minister mentioned diversity. That causes me to draw attention to the composition of the Court of Appeal in Northern Ireland. It is permitted to have four holders: the Lord Chief Justice and three Lords Justices. At present, there is a vacancy. However, at present, the court, in its community background, is exclusive to the Catholic community. If that situation existed in reverse, there would be uproar from some quarters. There would be cries of "Sectarianism", cries about human rights and cries of "Imbalance". Yet, we have a situation where, in our Court of Appeal, there is not one member — it is the highest court in this jurisdiction, subject only to the Supreme Court — from the Protestant community. We talk about diversity, but does the Minister have a view about that? If my information about the vacancy is correct, the appointment that is to be made — I am not faulting the person at all professionally — will mean that there are four persons from the Catholic community and none from the unionist, Protestant community. Is that healthy in terms of ensuring respect across the community? If diversity applies, why does it not apply in the Court of Appeal in Northern Ireland? All of that is said without questioning the professionalism or dedication of the members; it is said in the context that this is a divided society and there is therefore a legitimate expectation that the Court of Appeal should reflect the entire community.

Photo of Naomi Long Naomi Long Alliance

I thank the Members who have commented on the motion. As you know, the draft order is before the House following consultation with and the approval of the Justice Committee and the Northern Ireland Judicial Appointments Commission (NIJAC). It provides for an increase in the statutory maximum number of High Court judges from 10 to 15. I just want to touch on some of the points that have been made.

I thank the Chair for the Committee's scrutiny of the draft order and, indeed, a number of other orders that have been brought to it over recent months. It is very much appreciated that that has happened in a timely fashion.

There are a number of things that I would like to say about diversity in response to the comments made by Ms Rogan and Mr Allister. First, I want to clarify the rationale, which Mr Allister raised. Creating extra headroom now would allow for any future unforeseen pressures on the High Court bench to be dealt with more efficiently. That quite clearly requires a business case to be made, however, and it would not be automatic. Lifting the threshold to 15 therefore does not mean that we will have 15 High Court judges. It simply means that we will have the capacity to do that without having to return to the Assembly to make legislative change.

As I said, it also allows for the future appointment of part-time judges, who could be added to the potential pool of applicants for the High Court, thereby increasing diversity at that tier. A part-time, pro rata judge would count as one judge within the statutory maximum. Were you therefore to have a part-time judge, that judge would take up a full one of those places. That would require us to have more flexibility were we, for example, to replace one full-time judge with two part-time judges, because they would count as two extra judges.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

I cannot remember whether it was eight or 10, but did we not appoint part-time judges for a period of three years back in January? If they count pro rata, we are then already touching the quota. If an uplift in the quota was needed in order to appoint part-time judges, how did that happen, or is an uplift not needed to appoint part-time judges?

Photo of Naomi Long Naomi Long Alliance

For clarity, Mr Allister's point is that the part-time judges whom the Department appointed were temporary judges but that pro rata appointments would be made by the bench and go through NIJAC's procedures and would be permanent. As well as that, they would be reduced-hours positions, so that shows the difference between the two. A part-time, pro rata judge would therefore count as one judge, and that is why we would need the extra headroom: in order to multiply. Those who were appointed by the Department are temporary, so that is one of the reasons.

When it comes to judicial diversity , it is important to make the point that, when NIJAC makes its appointments, whether it be to the judiciary generally or, indeed, when it comes to issues such as the Court of Appeal, those appointments are made solely on the basis of merit, and it is correct that it ought to be so. We should, however, look at what barriers there may be to people entering those competitions to become judges or other members of the judiciary and progressing through the ranks. One such barrier may be the lack of flexibility around working, and that is one of the reasons that we are looking at the creation of part-time judges.

I thought that it would be important to give an overview of the diversity issues that we have, particularly around gender breakdown, in the judiciary in Northern Ireland. Across the salaried judiciary, from the Lord Chief Justice to the coroners, the headline figure is 40 males and 23 females. When that figure is broken down, however, there are quite significant differences across the hierarchy. The Lord Chief Justice is male, as we know. There are two Lords Justices of Appeal who are male, while the third position is currently vacant. There are eight male and two female High Court judges. There are 11 male and seven female County Court judges, and two vacant positions. There are 12 male and seven female Magistrates' Court judges. There are one male and two female district court judges; three male and four female masters of the High Court; and two male and one female coroners.

Breaking the figures down by age shows that there is a range of ages. If we look in particular at lay magistrates, however, the youngest are in the 40-to-44 age bracket. That continues up to the 65-to-69 age bracket, because, as the Member will be aware, lay magistrates have to retire from the judiciary at the age of 70, although I believe that that may be under review. Increasing judicial diversity here is important, and it is the role of the Northern Ireland Judicial Appointments Commission to promote it. That is an outcome that I fully support. I take on board people's concerns that they need to see a reflection of their identity and background at some level in the court system among those who are their peers as jurors, but they also need to see that reflected among those who represent the court itself. That is an important outcome.

To that end, it is hoped that the creation of additional headroom now through the draft order will allow for the future appointment of part-time judges, which may add to the potential pool of applicants.

Court advocacy is not an essential requirement for High Court appointments. The Northern Ireland Judicial Appointments Commission is keen to attract applicants from a broad range of skilled lawyers, regardless of professional background.

In closing, I will outline the qualifications needed to be a High Court judge, because there may be people out there who feel that only certain people can apply for the role. A High Court judge must be either a member of the Bar of Northern Ireland of at least 10 years' standing or a solicitor of the Court of Judicature of at least 10 years' standing. Therefore, experienced people in legal practice have the ability to apply, and I encourage them to apply when such vacancies come forward. It is hugely important that we have a diverse judiciary, but also that we have an effective judiciary that is based on appointment on merit.

I commend the order to the House. I believe —.

Photo of Paul Givan Paul Givan DUP

Thank you, Minister, for giving way. I had not planned to comment more widely on judicial appointments, given the limited scope of what we were doing, but Mr Allister has raised an issue.

The Committee wishes to have the Lord Chief Justice come before it, as he has in the past, in his role as chairman of the Northern Ireland Judicial Appointments Commission. The Minister may recall that, back in 2013, Judge Desmond Marrinan came before the Committee and made very serious allegations about his failure to be appointed. He highlighted his view that it was not a fit-for-purpose body because it is chaired by the Lord Chief Justice, unlike in England and Wales, where it is chaired by a layperson. Has the Minister looked into the way in which the Northern Ireland Judicial Appointments Commission is constructed and at the postholders of that organisation? That is something that I am keen to pursue, albeit I have not brought it before the Committee yet. It may be an area where Mr Allister's complaint could be looked at in more detail.

Photo of Naomi Long Naomi Long Alliance

First, we will have to separate the issue that Mr Allister raised from any suggestion that either the current chair of the Judicial Appointments Commission, or the wider Judicial Appointments Commission, are responsible for any imbalance or have failed in their duty to apply processes on merit. Most Members will agree that merit is an important principle. It is certainly one that I believe in and support in respect of how we deal with diversity. It is often in supporting people to be able to come forward and apply where the weaknesses lie.

As Minister, I have not taken a particular interest in NIJAC and the appointment of judicial office holders, beyond the conversations that I have had with the current Lord Chief Justice about the demands that are being placed on the judiciary at this time and how we can be of assistance. If the Chairman of the Committee wishes to take that forward as something that the Committee is interested in, he is of course at liberty to do so.

Without further ado, I commend the draft order to the House.

Question put and agreed to. Resolved:

That the Maximum Number of Judges Order (Northern Ireland) 2020 be affirmed.