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Selecting judges for the High Court in Northern Ireland
John Morison, Brice Dickson and Andrew Godden
In any judiciary it is important that there is high level of legal skill. Judges have to be adept at determining the facts which have given rise to the case before them and at deciding what the law has to say about those facts. The higher the level of the court, the more important it is that the judges are good at their job. It is also important that members of the public have confidence that that is the case. One way that confidence can be maintained is by ensuring that the judges are reasonably representative of the community they serve. They must have the necessary judicial skills, but they must also know and understand the society they are working for.
In Northern Ireland, a society still deeply divided between people who are happy to live within the UK and those who would prefer to live within a united Ireland, there has been an awareness for at least the past 30 years that public confidence in the judiciary is enhanced if the proportion of judges from each community roughly equate to the proportion within Northern Ireland as a whole. Putting this crudely – because religious background is not an infallible guide to political opinion – efforts have been made to ensure that 40–50 per cent of the judiciary come from a Protestant background and 40–50 per cent from a Catholic background.
The gender of judges has also been a talking point. To be fair, Northern Ireland’s recent record in appointing females to lower levels of the judiciary has been relatively good, but for too long it has been bad at the level of the High Court. It was as recently as 2015 that a woman (two on the same day, as it happens) was first appointed to the High Court, and none has been appointed since. The law currently allows for 10 High Court judges to be in post at any one time, but today there are still only two women amongst them.
In 2005 a body was set up to ensure that appointments to Northern Ireland’s judiciary are always based exclusively on merit, as determined by an open competition. Since then, however, the Northern Ireland Judicial Appointments Commission (NIJAC) has found it increasingly difficult to make appointments to the High Court. In 2016 the Commission advertised three vacancies but was unable to fill any of them. Two were filled in 2018, but in 2019, when another competition was run after another vacancy arose, again no appointment was made. NIJAC therefore commissioned research into why it was facing such a problem. We conducted that research and reported to NIJAC in June 2019. You can read about the details of our work in the winter issue of the 2019 volume of the Northern Ireland Legal Quarterly (unfortunately NIJAC has not yet published our research report on its website), but we summarise its findings in this our article.
We looked at research that had been carried out on barriers to High Court appointments in England and Wales, especially the excellent work by Turenne and Bell, and we interviewed or consulted with 50 legal experts in Northern Ireland, including 15 serving or retired High Court judges as well as solicitors, government lawyers and those working in less traditional legal roles. Many interviewees had personal experience of NIJAC’s selection process for High Court appointments, and others were potential applicants for future competitions. They all remain anonymous, of course, but we are very grateful to them for their openness in what they told us.
The main finding mirrors that of Turenne and Bell: what mostly puts off senior barristers from applying for a High Court post is that they would have to take a significant drop in income. Given that the annual salary for a High Court judge (in 2018–2019) was £185,197, it is obvious that a lot of senior barristers earn considerably more than that. We were told by many practitioners, including solicitors, that such a salary would not be attractive to them at this stage of their career. Some serving judges were also unhappy with the new pension scheme put in place in 2015 for new appointees. The previous scheme allowed judges to retire with an annual pension of up to one-half of their salary on retirement, in addition to a lump sum of 1.25 times their final salary. Crucially, those judges were exempt from the limits imposed on most other retirees regarding how much of a pension pot they could accumulate before having to pay tax on it. The new scheme bases a retired judge’s salary on a fraction not of their final salary but of their judicial career average salary, abolished the lump sum provision and removed the exemption from taxation provisions. The new scheme, like most public sector pension schemes, is still a relatively generous one, but it did nothing to make a judicial career more attractive to lawyers who would already be facing a sizeable drop in salary if they moved to the High Court.
(Incidentally, in England Wales the new judicial pension scheme was found by the Court of Appeal to be discriminatory on age grounds (Lord Chancellor v McCloud  EWCA Civ 2844) and the Supreme Court denied permission to appeal. The Ministry of Justice subsequently reacted by giving High Court judges appointed since 2015 an ‘allowance’, worth 25 per cent of their annual salary, to tide them over pending a reform of the pension scheme. It has not yet been confirmed that this salary hike will be applied in Northern Ireland too.)
Our research also confirmed the suspicion that lawyers are unwilling to apply for High Court posts because they do not like the sound of the kind of life they would be leading if appointed. Compared to the relative autonomy and work–life balance that successful practitioners can now achieve, the life of the High Court judge is seen by some as restricted. If a leading practitioner were appointed to the High Court bench they would have to deal with categories of cases allocated to them by the Lord Chief Justice; they might have to operate in areas of the law in which they had little experience; they would not be as free to take time off when it best suited them; they would have to face intense scrutiny from the press when dealing with controversial cases; and they would have to curtail their social life not just for security reasons but because judges cannot be seen to be too close to people who may later be appearing before them as advocates. Several interviewees added that there is a particular ‘culture’ in the corridor where judges have their chambers in the Royal Courts of Justice which is a far cry from the bonhomie of the Bar Library (barristers do not work out of chambers in Northern Ireland) or the working practices of the modern solicitor’s office.
The finding from our research which seems to have been most controversial is the suggestion that some aspects of the selection process may be militating against certain categories of applicant. It was suggested to us by some interviewees that there may be unconscious bias at work. Government lawyers, those in the voluntary and community sectors and, particularly, solicitors often expressed the view that their merits were not necessarily likely to be recognised. In particular, and perhaps most problematically, there was a feeling on the part of County Court judges that their chances of being successful in a competition for a High Court post were reduced because NIJAC’s selection committees were looking for candidates who mirrored the background of nearly every current High Court judge – that of a highly successful barrister who had been impressive when appearing as counsel in the High Court or Court of Appeal. We even heard it suggested (but also roundly refuted) that County Court judges are unlikely to be up to the intellectual challenges of High Court work. Whether this true or not, the fact remains that, in the 15-year history of NIJAC to date, not one County Court judge has been successful in a competition for the High Court.
We found this strange. County Court judges were themselves accomplished lawyers before being appointed to the bench; they try some of the most serious criminal cases in Northern Ireland and all of the extradition cases; they have already signalled that they see their future in public service rather than in more highly remunerative private practice; and they are accustomed to the glare of publicity. Some are even invited to sit in the High Court on a temporary basis to help deal with the backlog there. Nevertheless, many on the County Court bench believe that their merits are being overlooked when it comes to NIJAC’s appointment rounds. This perception is hardly conducive to good relations across the judiciary generally. Perhaps even more importantly, it is unhelpful at a time when persistent vacancies on the High Court would seem to require that the fullest range of talent be encouraged to apply for this most important role.