We can learn from Northern Ireland in appointing judges
It is time to change the way in which judges here are selected, writes CAROL COULTER
MR JUSTICE Hugh Geoghegan retired last Friday as a member of the Supreme Court. In due course the Government will “nominate” his replacement, for appointment by the President, as provided for under the Constitution. It is unknown for the President to reject a government nomination.
The Judicial Appointments Advisory Board has already advertised for applications to fill the vacancy, along with applications to fill any vacancy that might arise on the High Court, in the not-unlikely event that the Supreme Court position will be filled by a member of that court. Existing High Court judges do not have to submit their names to the advisory board for appointment to the higher court.
The board is made up of the Attorney General, the presidents of the Supreme, High, Circuit and District Courts, nominees of the Law Society and the Bar Council, a representative of the Courts Service, who acts as secretary, and three lay people.
Under the legislation setting it up, it advertises vacant positions, processes applications and forwards seven names, in no particular order and with no recommendation, to the Government. It does not interview candidates and its essential role is to ensure that all candidates meet the minimum requirements and have tax clearance certificates.
The fact that it sends forward seven names means the reason the advisory board was set up – to counter criticisms that the system was based on political patronage – has not been addressed. With seven names, there is a strong likelihood that at least some of the prospective candidates will have links with a government party or parties.
While not all judicial appointees over the last few years have had links with one of the governing parties, it is certainly not a disadvantage to have one, although judges, once appointed, leave those associations behind and are generally considered to administer justice in an independent and impartial manner.
The main problem with the current system is its lack of transparency and the fact that the setting up of the Judicial Appointments Advisory Board did nothing to reduce the political element in the process. Nor does it have any responsibility for ensuring that judges, as far as possible, given the requirement that they have the relevant legal background, are representative of the society for whom they administer justice.
In this it contrasts sharply with the system in Northern Ireland, which was reformed radically in the wake of the Belfast Agreement. Similar reforms were introduced in Scotland and in England and Wales, where the appointment of judges has been taken out of the arena of political patronage.
The Northern Ireland Judicial Appointments Commission was set up in June 2005 as an independent public body. It has 13 members, including representatives of different layers of the judiciary and of the legal profession, and five lay people.
Its functions are to conduct the selection and appointments process, recommending applicants solely on merit to the lord chancellor. A crucial difference with the Irish system is that only one name is sent forward. While the lord chancellor may reject that name, the commission can resubmit it.
It was also asked to engage in a programme of action to ensure, as far as reasonably possible, that the range of applicants reflect the community in Northern Ireland, with particular attention devoted to ensuring that no one is discriminated against on the grounds of gender, marital status, race, age, sexual orientation, community background, disability, dependent responsibilities or political opinion.
The eligibility requirements for appointment to the various judicial offices that fall within the commission’s remit are set out both in the legislation and in detail in the advertisements it publishes, which are on its website.
The process is transparent, in that the specific competences and criteria are published on the web. The “judicial selection framework” used to select candidates is also published there, with complete background information on this system.
Candidates may be asked to complete a self-assessment form, which is then assessed to shortlist for interview, or they may just be asked to express an interest in a position. During the recruitment competitions, candidates may be asked to comment on a written case study, answer hypothetical questions or take part in a role-play.
The Judicial Appointments Commission of England and Wales has just launched an online video of the type of role-play exercise their candidates may be asked to undertake, and this is available on the web. That commission said it hoped that by providing online access to this film, in which parts are played by professional actors, the process of applying for judicial office would be demystified and more people would be encouraged to apply.
In a further attempt to demystify judges’ work, the Northern Ireland Judicial Appointments Commission has introduced a judicial shadowing scheme whereby doctors, lawyers, land-valuers and others with an interest in the legal system are able to shadow judicial office- holders for a day.
It is already popular, and the commission has appealed for more applications to participate.
Further accountability is provided in that those who feel maladministration or unfairness has occurred in the judicial appointment process can go to the Northern Ireland Judicial Appointments Ombudsman, who investigates such complaints.
All this is light years ahead of the system in the Republic, which is still shrouded in mystery. The advisory board serves as little more than window-dressing for a process where the Government still selects those it wants to sit on the bench, and no one knows what criteria apply, other than basic qualifications and duration of legal experience.
Surely the Belfast Agreement was meant to bring equivalent standards of accountability and transparency to public administration and the administration of justice in both parts of the country?