Review of Judicial Appointments in Northern Ireland - Background Paper

Background Paper

In Northern Ireland, the judicial appointments process is administered by the independent Northern Ireland Judicial Appointments Commission (NIJAC).  NIJAC is a recommending body in respect of Crown appointments and an appointing body in respect of non-Crown appointments.

NIJAC recruits for a varied range of judicial appointments – legal and lay/ordinary posts and posts which require other experience outside the legal profession – i.e. land valuation, medical, finance, human resources and health and social care.  Since 2005, NIJAC has recommended 234 people for judicial appointment across 43 recruitment campaigns.  NIJAC has also overseen 507 judicial appointment renewals.

The Lord Chief Justice is responsible for the removal of judges in Northern Ireland.  Removal of a listed judicial office holder requires a recommendation for removal to have been made by a tribunal drawn from the Northern Ireland Judicial Appointments Commission’s membership and convened by the Lord Chief Justice or the Northern Ireland Judicial Appointments Ombudsman (NIJAO).  The most senior judges can only be removed by the Queen after an address of both Houses of Parliament.

Northern Ireland Judicial Appointments Commission (NIJAC)

The Review of Criminal Justice in 2000 recommended the establishment of a judicial appointments commission for Northern Ireland which would have responsibility for ‘organising and overseeing….. Judicial appointments from the level of High Court judge downwards’.  The Justice (Northern Ireland) Act 2002 gave effect to this and other recommendations of the Review of Criminal Justice.  The Act also amended the law relating to the judiciary and courts in Northern Ireland including provision for the removal of judges, changes to eligibility criteria, a new oath and provisions to make the Lord Chief Justice head of the judiciary in Northern Ireland.

The Northern Ireland Judicial Appointments Commission (NIJAC) was established in June 2005 as an independent executive Non Departmental Public Body and has a statutory duty to ensure that appointments to judicial office are based solely on merit.

The Northern Ireland Act 2009 extended NIJAC’s statutory duties and NIJAC is a recommending body in respect of Crown appointments and also an appointing body in respect of non-Crown appointments.

The 2002 and 2004 Justice (Northern Ireland) Acts set out NIJAC’s key statutory responsibilities:

• To conduct the appointments process and to select and recommend for appointment in respect of all listed judicial appointments up to, and including, High Court Judge
• To recommend individuals solely on the basis of merit
• To engage in a programme of action to secure, so far as is reasonably practicable to do so, that recommendations for appointments to judicial office are reflective of the community in Northern Ireland
• To engage in a programme of action to secure, as far as is reasonably practicable to do so, that a range of persons reflective of the community in Northern Ireland area viable for consideration by the Commission whenever it is required to recommend a person for appointment to a listed juridical office.
• To publish an annual report setting out the activities and accounts for the period.

The Northern Ireland Act 2009 also increased NIJAC’s responsibilities to include:

• An appointing body in respect of non-crown appointments (rather than just making a recommendation for appointments).
• Agreeing with the Department of Justice the maximum number of persons who may hold a judicial office at any one time;
• Agreeing legislative change governing the maximum number of judicial offices;
• Deciding elements of terms and conditions for certain judicial offices;
• Supporting the Department of Justice in judicial succession planning; and
• Providing Commissioners to participate in ‘removal tribunals’ convened by the Lord Chief Justice or the Northern Ireland Judicial Appointments Ombudsman.

Office of the First Minister and Deputy First Minister

The Office of the First Minister and Deputy First Minister (OFMDFM) does not have any role in the judicial appointments process, rather has a role to oversee NIJAC’s governance and finance.   This is at variance with the Review of Criminal Justice in 2000 which recommended that following the devolution of policing and justice, political responsibility and accountability for the judicial appointments process should lie with OFMDFM.

Assembly Research Paper: Judicial Appointments in Northern Ireland

Details of the legislative context for judicial appointments and the processes in the rest of the UK and Republic of Ireland are contained in the briefing paper from Assembly Research and Information Service - ‘Judicial Appointments in Northern Ireland’ (a copy is at appendix 4). This paper also lists the judicial office holders under the remit of the NIJAC and the steps in the appointments process.

Schedules 2 to 5 of the Northern Ireland Act 2009 - Summary of Amendments

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) giving the Northern Ireland Judicial Appointments Commission (“NIJAC”) additional responsibilities. Section 29C of the Northern Ireland Act 1998 (“the 1998 Act”) states that standing orders shall require one of the committees established by virtue of section 29 or the committee established by virtue of section 29A of the 1998 Act to review the operation of the amendments made by Schedules 2-5 to the Northern Ireland Act 2009. Standing Order 49A provides that the Committee for Justice shall review these amendments, report on its review by 30^th April 2012 and include in its report any recommendations it has for changes to the way in which judicial office holders are appointed and removed.

The amendments are summarised below:

Schedule 2

• Substitutes sections 12 to 12C for sections 12 and 12B of the Judicature (Northern Ireland) Act 1978. New section 12 makes provision for the appointment of the Lord Chief Justice and Lords Justice of Appeal by the Queen on the recommendation of the Prime Minister. The Prime Minister must consult the current Lord Chief Justice (or if that office is vacant or the Lord Chief Justice is not available, the senior Lord Justice of Appeal who is available) and NIJAC before making a recommendation.

• New section 12A makes provision for the appointment of High Court judges by the Queen.

• New section 12B deals with tenure of office of the Lord Chief Justice. The Queen may remove the Lord Chief Justice following an address of both Houses of Parliament. A motion for such an address may be made in the House of Commons only by the Prime Minister and in the House of Lords only by the Lord Chancellor, or, if the Lord Chancellor is not a member of that House, only by another Minister of the Crown at the Lord Chancellor’s request. There are certain conditions which must be met before a motion can be moved. A motion can only be moved if a tribunal convened by the Prime Minister (after consulting the Lord Chancellor) and including a lay member of NIJAC, has recommended the removal from office on grounds of misbehaviour. No motion can be moved unless a copy of the tribunal’s report is laid before Parliament.

• New section 12C provides for the removal of Lords Justices of Appeal and also High Court judges appointed before section 7 of the 2002 Act (removal from listed judicial offices) came into force. The Queen may remove Lords Justices of Appeal and certain High Court judges following an address of both Houses of Parliament. A motion for an address may be made in the House of Commons only by the Prime Minister and in the House of Lords only by the Lord Chancellor or, if the Lord Chancellor is not a member of that House, only by another Minister of the Crown at the Lord Chancellor’s request. No such motion may be made unless a Tribunal convened either by the Lord Chief Justice or the Northern Ireland Judicial Appointments Ombudsman has recommended that the office holder be removed on grounds of misbehaviour and the Lord Chancellor and the Prime Minister have consulted with the Lord Chief Justice or have been advised by the Lord Chief Justice to accept the recommendation. Pursuant to section 7 of the Justice (NI) Act 2002 the power to remove or suspend a person holding a listed judicial office is now exercisable by the Lord Chief Justice.

• New section 12 C also deals with the constitution of the tribunal.

Schedule 3

• Schedule 3 makes amendments to the Justice (Northern Ireland) Act 2002 amending the appointment and removal provisions. Section 5 and Schedule 3 of the Justice (NI) Act 2002 had originally prospectively transferred responsibility from the Lord Chancellor to the First and deputy First Ministers, acting jointly, for the appointment of persons and for recommending persons to the Queen for appointment as listed judicial office holders.

• Paragraphs 3 and 13 to Schedule 3 (of the Northern Ireland Act 2009) substitute a new Schedule 3 for Schedule 3 of the Justice (NI) Act 2002. Part 1 of new Schedule 3 sets out the process for appointment of those listed judicial office holders appointed by the Queen. Part 2 of new Schedule 3 sets out the appointment process for listed judicial office holders appointed by NIJAC. New Schedule 3 also provides that selection of a person to be appointed or recommended for appointment, to a listed judicial office must be solely on the basis of merit. The Queen’s power to appoint a person to a listed judicial office is exercisable on the recommendation of the Lord Chancellor. NIJAC is responsible for selecting a person for recommendation for appointment and must notify the Lord Chancellor a person is selected. The Lord Chancellor must, as soon as is reasonably practicable, recommend the selected person for the office. NIJAC select and make recommendations for Crown appointments to the Queen via the Lord Chancellor, up to and including High Court Judge. It is also an appointing body, selecting and appointing persons to non- Crown listed judicial offices. Previously, the Justice (Northern Ireland) Act 2002 provided that the power to add or omit listed judicial offices or alter their description was exercisable by the First Minister and deputy First Minister. Section 1 and Schedule 1 of the Justice (Northern Ireland) Act 2004 amended the Justice (Northern Ireland) Act 2002, transferring these functions from the First Minister and deputy First Minister to the Lord Chancellor.

• The substituted new Schedule 3 of the Justice (Northern Ireland) Act 2002 also provides that NIJAC must at all times 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 and that a range of persons reflective of the community are available for consideration by NIJAC when selecting a person or recommending for appointment.

• Part 1 and Part 2 of the new Schedule 3 no longer include a provision for the Lord Chancellor to ask NIJAC to reconsider their selection. Previously, the Justice (Northern Ireland) Act 2002 provided that when NIJAC made a selection for the Lord Chancellor to consider, he could ask NIJAC to review its choice.

• Provides that the power to remove a person from a listed judicial office (or suspend a person from office pending a decision whether to remove him) is exercisable by the Lord Chief Justice upon recommendation by a specially convened tribunal. Previously this power was prospectively provided under the Justice (NI) Act 2002 to the First Minister and deputy First Minister, acting only on the basis of a tribunal recommendation and only on agreement of the Lord Chief Justice. The Lord Chief Justice has discretion not to remove or suspend someone even if a recommendation has been made but must notify the person, the tribunal and, if the tribunal was convened by the Northern Ireland Judicial Appointments Ombudsman, the Ombudsman of the reasons for not removing or suspending the person.

• Makes provision in respect of tribunals for considering removal.

• Provides that NIJAC must agree with the Department of Justice (DoJ) the maximum number of persons who may hold a listed judicial office at any one time.  With the agreement of DoJ, NIJAC may revise this determination.

Schedule 4

• Transfers the powers to appoint certain judicial office holders from the Lord Chancellor to NIJAC (including tribunals) and to agree with DoJ the terms and conditions of appointment for certain office holders and provision about the payment of fees and allowances to office holders.

Schedule 5

• Consequential amendments and transitional provisions relating to appointments, removals and investigation of complaints of maladministration initiated before the Northern Ireland Act 2009 came into operation.