Official Report (Hansard)

Session: 2013/2014

Date: 16 January 2014

PDF version of this report (319.77 kb)

Committee for Justice

 

Judicial Appointments and Competition for a High Court Judge: Northern Ireland Judicial Appointments Ombudsman

 

The Chairperson: I formally welcome the Northern Ireland Judicial Appointments Ombudsman to the meeting.  As before — you are accustomed to these proceedings now — the session will be recorded by Hansard and published in due course. 

 

I advise the ombudsman that policy relating to judicial appointments and complaints processes falls within the remit of the Justice Committee, and we have legislative powers in that area.  The Committee is seeking to clearly understand the process adopted in the High Court judge case that was brought to its attention in order to increase understanding of how the Northern Ireland Judicial Appointments Commission (NIJAC) operates and then to inform its consideration of the judicial appointments process and any changes that may be required. 

 

Given the gravity of what the Committee has heard about that competition, we believe that there is a need to look at it in the wider public interest within the context that I outlined, and, hopefully, you, as ombudsman, will be able to assist us in our deliberations on the matter. 

 

You indicated that you will be constrained, in some respects, in what you are able to tell us.  Obviously, you will be able to advise us throughout the meeting whether there are areas that you are unable to assist us with.  In your opening remarks, I would appreciate it if you would identify, if you are able to do so at this point, how you believe that section 9I — I think that that is the one that you refer to — of the Justice (Northern Ireland) Act 2002 may preclude you from providing information.  Are you able to indicate the areas that you believe that is applicable to?

 

Mr Karamjit Singh (Northern Ireland Judicial Appointments Ombudsman): Absolutely.  I could cover those points.

 

The Chairperson: I will hand over to you.

 

Mr Singh: Thanks very much.  I have some written points that I will try to run through as quickly as I can.  Thank you for inviting me to give evidence following the session that you held last year on a specific competition for a judicial role.  I will try to be as succinct as possible in these opening comments. 

 

That judicial competition was initiated in 2009 during the period before policing and justice matters were devolved to the Assembly.  My understanding is that the legislative framework does not provide you with a remit to consider these issues or the details of my investigation of individual complaints, or to compel me to give evidence or provide any documentation to you.  I have responded to your invitation by attending on a voluntary basis, because I recognise that the Committee has a legitimate interest in the administration of justice in Northern Ireland, of which judicial appointments are a part. 

 

As an independent office holder, I am neither there to represent complainants nor the Judicial Appointments Commission but am required to undertake impartial investigations and make decisions.  I was appointed as the first Northern Ireland Judicial Appointments Ombudsman in September 2006.  My appointment will conclude in or before September 2016, depending on when the role is subsumed into the new, as yet to be created, public services ombudsman role.  I report on my activity and costs each year through an annual report, which, up to 2010, was laid in Westminster, and, since the devolution of policing and justice issues, is now laid in the Assembly.  Those annual reports are published on my website at www.nijao.gov.uk. 

 

The Justice (Northern Ireland) Act 2002 sets out the framework for investigating complaints from candidates.  Those complaints cannot relate to an individual not being appointed but should be about the process only.  I am required to set out my findings and decisions in my reports.  A draft report should be sent to the commission and the Lord Chancellor for any comments, and I shouldl include any comments received from them, as well as my response, in the final report.  The legislation makes it clear that the report sent to the complainant should not include details about any other candidate.  It has always been my practice to send the same version of my final report to the complainant, the commission and the Lord Chancellor.  In the case of post-devolution complaints, the legislation provides that the draft report go to the Office of the First Minister and deputy First Minister instead of the Lord Chancellor.

 

The legislation also states that no information relating to judicial appointments and discipline must be disclosed without lawful authority and that it is confidential if it relates to an identifiable individual.  That does not prevent the disclosure of information that is already available to the public or the courts following legal proceedings or as a result of a court order.  This duty of confidentiality as required by legislation is not unique to my ombudsman role.  I assume that the Committee is aware that the Northern Ireland Ombudsman has similar duties of confidentiality for his individual cases as set out in the legislation governing his role, as do ombudsmen in jurisdictions beyond Northern Ireland. 

 

I would not wish the Committee to have the mistaken impression that there is nothing in the public domain about any of the complaints that I have dealt with.  It is important to promote public confidence by striking an appropriate balance between transparency and confidentiality.  I have tried to do that in each of my annual reports by providing an anonymous summary of the complaints so that the confidentiality of complainants and others is respected as well as complying with the statutory framework.  Those summaries also include the three sets of complaints made by one individual about the same competition that we referred to in the evidence considered by the Committee during a session last year.  I drew your attention to those summaries in my earlier correspondence and, in total, they make up 17 pages of the three annual reports in question.

 

Even though maladministration is not defined in the legislation, I am required to make a judgement in each complaint about whether it has occurred, after considering whether any unfairness in the appointment process has been identified.  My personal interpretation of that term would be identifying a systems or process factor that is of such significance that it effectively makes the entire selection process null and void.  In those three sets of complaints, I upheld four out of 26 complaints and decided that none of those four constituted maladministration for the reasons set out in the summaries and my final reports. 

 

I have always met complainants at the beginning of my investigations to listen to what they consider to be the important issues, as well as to explain my role and the process that I will adopt.  I make it clear that my role as ombudsman is not to review or substitute any decisions taken about individual candidates during or at the conclusion of a selection process by the commission.  I then agree the terms of reference for my investigation with the complainants.  After that, I obtain access to all the documentation relating to that specific competition from the commission before deciding whether any further interviews should be undertaken or whether additional material needs to be collected. 

 

An important consideration is to ensure fairness to complainants while respecting the confidentiality of other candidates, and I make judgements about that during the investigation.  I do not regard this process as being an adversarial one between the complainant and those complained against or for me to be guided by one or more of the parties on how I should discharge my responsibilities or, indeed, to act as an advocate on behalf of one particular party. 

 

I have read the evidence given to the Committee during a previous session and note that there appear to be some selective quotations from one or more of my final reports.  I am not able to place my three final reports into the series of complaints or, indeed, those relating to any other complaints in the public domain.  As an ombudsman, my starting point has to be the consideration of the statutory framework and my obligation to comply with it as an independent office holder.  It is my understanding that the Committee has been provided with copies of my final reports and background material from another source.  It is a matter for the Committee alone to consider whether that material should be put into the public domain and what the implications of that might be.  The Committee will no doubt be aware that, for the purposes of the legislation, it cannot regard itself as the public.

 

I note from oral evidence previously given to the Committee that there has been a conflation of the issues relating to this specific judicial competition, with suggestions being made for changes in the future governance of judicial appointments processes.  I have not addressed that second issue in length in my opening comments to the Committee, because I see them as two separate matters.  I wrote to the Committee previously, drawing attention to my first annual report that was published in 2007, summarising the discussions that I had with over 60 opinion leaders, largely drawn from Northern Ireland, about themes such as judicial appointments, complaints processes and diversity.  I also arranged for each member of the Committee to receive a copy of that report, which is also available on my website. 

 

Finally, I hope that I can be helpful to the Committee in its deliberations about judicial appointment processes.

 

The Chairperson: Thank you very much.  Hopefully, as we ask questions, you will be able to judge whether they are on something that you are able to address.  Your assistance is appreciated.

 

At the outset, I indicated that the Committee has a role when it comes to NIJAC.  We had a review and will have another one.  This will help to inform us so that we can conclude what type of organisation we think is best to serve the needs of our population.  I believe that this case will give us some insight into the broader workings of NIJAC.  At the point of the last review, we were unaware of the case but are aware of it now.  There is a broader principle here.  I am not particularly interested in finding guilt or innocence on the part of the complainant, but if it helps to highlight areas of concern in the broader operational workings of NIJAC, that will help this Committee.  We have taken legal advice on this issue and are in a sound place.

 

Mr Singh: All that I would say is that we are absolutely on the same page as far as where you are trying to get to is concerned.  If I feel that there are constraints from the statute, I will clearly signal that to you, but I would not wish you or members of the Committee to feel that I am not trying to assist you.

 

I hope I made it clear in my opening comments that I think that the Committee has clearly got a role in focusing on the administration of justice, and judicial appointments are a part of that.  I do not think that there is any misunderstanding between us on that issue.

 

The Chairperson: Thank you.  I want to start with a couple of questions.  They relate to a 2007-08 report.  In that report, you indicated:

 

"In considering whether maladministration has occurred, the Ombudsman has to assess whether the process for assessing the complainant’s application ensured he ... was treated fairly".

 

In the report, you found that the selection panel had failed to discharge its duty and complete the moderation process, yet you concluded that the complainant was not disadvantaged and that maladministration had not occurred.  Will you explain how you reached that conclusion?

 

Mr Singh: I think that the appropriate thing for me to do would be to quote what I said in my annual report.  I do not think that it is appropriate to go beyond that.  I will write to your secretariat subsequently to draw this point out, but, on page 10 of my annual report for 2009-2010, I stated:

 

"The issues raised have been summarised as follows:

 

• the Commission, through the actions of its Selection Committee, had treated the complainant unfairly without observing due and proper process and that this was not remedied by the Complaints Committee;

• the Selection Committee’s approach to moderation was flawed; the justifications for its conclusions were inconsistent; and there was the appearance of bias because of the decisions that were taken by the Committee;

• the Selection Committee should not have introduced a second round of assessment, the format of which was unfair;

• members of the Selection Committee should have recused themselves after the first round of interviews;

• the Complaints Committee had not subjected the decisions made by the Selection Committee to rigorous and searching scrutiny."

 

In summary, those were the first set of complaints.

 

On pages 10, 11, 12 and 13, I set out my findings on each aspect of those complaints and concluded:

 

"Although I upheld two aspects of the complaint, and there are some specific aspects that I do not consider it is possible to incorporate within this public report because they relate to other candidates, I have taken the view that all these dimensions need to be considered within the totality of a selection process. I do not consider that the appointments process was flawed in relation to this particular competition."

 

The Chairperson: In the report, you indicated that there was "the appearance of bias".  That was changed to a "perception of unfairness" at the request of the Lord Chief Justice.

 

Mr Singh: The role of the Lord Chief Justice and the Lord Chancellor — this is set out in the legislation — is to look at the committee and say whether there are any further issues that it should bring to my attention.  It is a matter for you to consider in the future whether that should be extended to complainants.  With your permission, I will read this part out:

 

"One of the strands within the complaint was whether or not the conduct of the Selection Panel had given rise to an appearance of unfairness. This was relevant in that it has provided a strong motivation behind the complaints. It was also clear from my discussions with the complainant and with members of the Selection and Complaints Committees that there were differing perceptions and assumptions. Responding to concerns which emanate from a perception of possible bias, having sensitivity to appreciating the difficulty of making a complaint and considering the possible ramifications for the competition should have merited a speedy response to the complainant. The Commission should at all times take into account whether any actions or otherwise on its part or its Committees provide a continuing sense of confidence. This is about sensitivity to external perceptions and not about the intentions of individuals or groups within the Commission.

 

For the reasons set out above I upheld this aspect of the complaint."

 

That is at page 12 of my annual report for April 2009 to March 2010.

 

The Chairperson: In what way does "perception of unfairness" differ from "appearance of bias"?

 

Mr Singh: I have thought about this, and my understanding is that, to the lawyers, bias means something very clear about the procedures and the way that they were followed.  My view all the way through — I am not a lawyer — was about the issue of how that was perceived.  I am going on what I have put here.  You have to appreciate what I put in my public report.  I have tried, as far as I can, to take as much as I can from the final report and put it into an appropriate context.  You will appreciate why I have not included certain material because you, as a Committee, have seen it, and I hope that you understand why I felt that I could not put that into the public report.

 

The Chairperson: Did you establish the real reason why they did not complete that moderation process?  They totted up four out of five areas, and the complainant has indicated to the Committee that, had they completed it, he would have won the competition.  However, they stopped after counting up four of them.  What was the reason for that?

 

Mr Singh: I will see how I can respond to that and try to be as helpful to you as possible.  My report states:

 

"It was clear from the documentation and my meeting with members of the Selection Committee that there were extended discussions about whether it was possible to complete an assessment of candidates in terms of all the competences."

 

That is at page 10 of the 2009-2010 report.  It continues:

 

"Once the Selection Committee had decided to introduce a further stage into the competition, the moderation process was then left in abeyance. I considered that the Selection Committee should have continued with its deliberations and completed moderation. I am aware of the reasons why the Selection Committee felt unable to do so. Completing the moderation process would have ensured a completed audit trail for this part of the recruitment process and the Guidance is explicit that this falls within the responsibilities identified for the Selection Committee.

 

Taking these issues into account I upheld this aspect of the complaint."

 

I will, with your permission, read the next section, because I think that it is relevant to you:

 

"The Committee decided to introduce a further stage in the recruitment process after consulting Commission staff. The Selection Committee saw this additional element as part of a continuous assessment process for the position. I noted that the Commission staff guidance to the Committee is based on published guidance which states that 'the Commission may decide at its discretion to use additional assessment methods, at any stage of the selection and assessment process e.g. case studies, tests, role plays, etc.' I did not agree with the argument that it is only the Commission as a whole which can adopt this approach at the beginning of a competition."

 

That was one of the complaints that was made.  It continues:

 

"In deciding to add a further assessment stage to the appointment process the Committee did not create a fundamental flaw. I did not agree with the view that any such action is inherently unfair to candidates when it is clear that the Committee is mandated to act on behalf of the Commission and take appropriate decisions within clearly defined parameters.

 

For these reasons I did not uphold this aspect of the complaint."

 

On that point more generally, when I looked at this, I approached my role — it is not for me to talk about my background here — as a non-lawyer and as someone who has been involved with selection from a number of different perspectives and through a number of different roles.  Essentially, a core element of this complaint has always been that the process should have stopped at that point.  That has always been a core element of this complaint.

 

The Chairperson: On that element of the complaint, you said that — this is what is in your report — the selection panel, chaired by Lord Justice Coghlin, failed to discharge its duty, because it did not complete the moderation process.  I accept that you say in a subsequent paragraph that they were allowed to do that, but you found that the selection panel had failed to discharge its duty, because it did not complete the moderation process.  However, you then found in the conclusion that the complainant was not disadvantaged and that maladministration had not occurred.  Had they completed the moderation process, Judge Marrinan would have won.  So how can you, then, come to the view that he was not disadvantaged and that they did not fail to discharge their duty?

 

Mr Singh: I think that the issue here — I am trying to think how I can illustrate this to you — is that you and, if I may say so, the complainant are talking about one stage in the process, but it was very clear that a decision was taken that the selection process was more than that stage. 

 

I think that there is a wider issue here about the selection process, which has also been raised, and which I mention in my first annual report.  It is about the whole question of whether selection processes should be based on a formulaic approach with numbers to one aspect of the selection process, or whether, if you are seeking to appoint someone on the basis of merit, the self-assessment that candidates put forward, the consultee comments that you get, the shortlisting and the role of an interview, and whether the one interview should be the thing on which everything hinges.  I am simply making the point.

 

With your permission, I will just quote two or three sentences out of my 2007 report:

 

"The interview should be part of an overall selection process that is seeking demonstration of the competencies to a standard of excellence and allows the exploration of various issues. This evidence adds to the applicants own self assessment and information in the references. It may also be the case that the use of ... other selection techniques might be helpful."

 

It continues:

 

"The importance of adopting a holistic approach is that it does not elevate the interview to being the ultimate arbiter in the selection process and lead to a situation where rigid formulas are adopted because of concerns about subsequent challenges that may occur from candidates."

 

The Chairperson: At what point was the new stage introduced to the competition?  Was it sent out to the candidates at the start?  Were they informed that this was the process?

 

Mr Singh: I am afraid that I will have to put that in writing to you, Chairman.  I will have to go back and look at the papers on that.  It may be in my final report.

 

The Chairperson: OK.  I will bring in other members at this point.

 

Mr McCartney: Thank you very much for your candour so far in relation to this, because it is difficult to go between the generalities and the particulars of a subject.  I appreciate that.  I refer to your powers and annexe C of the ombudsman's document.  It asks what, if any, action he recommends should be taken by the commission as a result of the complaint.  Have you the power to say that the competition should be rerun?

 

Mr Singh: That is an interesting question.  According to my definition of maladministration, if it was null and void, my view is that I would, effectively, write in my final report that the entire competition should be run.  I think that there has been an assumption, if I may say so, that, if another candidate was not found to be appropriate, this would have gone to the complainant, automatically.

 

Mr McCartney: I do not want to go into the particulars of it, at the minute.

 

Mr Singh: I am just making that point.

 

Mr McCartney: I will come to that.  Have you the power to say to the commission, "The competition should be rerun"?

 

Mr Singh: My role comes back to section 9I of the legislation.  Obviously, I can find the section and read it out.  In defining maladministration, according to my role, I would say very clearly that the competition is null and void and should be rerun.

 

Mr McCartney: OK.  So, you have the powers to do that.

 

Mr Singh: That would be my interpretation; it is not stated like that in legislation.

 

Mr McCartney: In that instance, what would happen if someone had been appointed?  Would they be asked to stand out of office when the competition was rerun?

Mr Singh: I think that that is a question that the commission would have to answer rather than me.

 

Mr McCartney: OK.  You can see the particular predicament that you could put the commission in, if you decided that the competition was null and void for reasons of maladministration or whatever, but it had already appointed someone.

 

Mr Singh: May I follow that through and draw your attention to something else that I said to the commission?  Please bear with me; I will find it as quickly as I can.  It is about a situation, where I commented on how the commission arrived at the decision.  I think that it is important.

 

The Chairperson: From memory, you criticised NIJAC for continuing with this competition whilst your investigation into the complaint was ongoing.

 

Mr Singh: Let me read out to you what I said.  I think that it is for you to decide on whether it was criticism or otherwise.  Page 19 of my 2010-11 annual report states:

 

"I note there is no formal agreement between my role as an Ombudsman and the Commission whether the appointment process should continue whilst I am still considering a complaint."

 

This is responding to particular points that you made:

 

"In this particular competition the Commission had decided to make a formal recommendation to the Lord Chancellor before I had issued my final report. I am mindful the Commission is an independent statutory body and I am also aware I have no power to substitute my own decision in any selection process.  I consider that such decisions taken in the midst of a complaints process can give rise to the perception on the part of complainants and others that the complaint is viewed as being of little value or there are closed minds with regard to the outcome.  Confidence in the integrity of the selection process can only be a casualty of such perceptions.  I recommend that the Commission gives consideration to adopting a general policy that no formal part of the appointment process to fill a post will be made unless any outstanding complaints process relating to the same competition has been completed.".

 

By "no formal part", I meant that no recommendation really ought to be going to the Lord Chancellor or anywhere else until, obviously, the complaints process is completed.  Whatever deliberations the commission may have behind closed doors in its own discussions, it clearly ought not to be taking that step. 

 

If I may come back to your point, if you think about the role of ombudsmen, you will see that ombudsmen do not have a role to say that you must do this or you must do that.  You have to appreciate that the ombudsman, essentially, is setting out and undertaking an impartial investigation and making recommendations.  As an ombudsman, I hope that whatever I say will be listened to very carefully and treated seriously, but I accept that there will be occasions when my reports and my conclusions will not necessarily be welcomed with open arms.

 

Mr McCartney: In broad terms, NIJAC is a body in which we, collectively, must have confidence that its process of selection is beyond reproach.  In this instance, I think that the role of the ombudsman is to ensure that if a person makes a complaint, it will be listened to, adhered to and acted upon.  I agree with you that, if someone makes a complaint that is subsequently upheld but the competition runs ahead, you can see why the public, although I cannot speak for everyone, will say, "What is the point of making a complaint if you continue the competition and nothing happens at the end of it?".

 

You submit a draft and give it to the commission.  When the commission asks for corrections, as it obviously does, sometimes for accuracy and, in this particular instance, phraseology, what is the process that allows you to change your first-held opinion?

 

Mr Singh: Simply, the only process is to look at what has been sent to me in writing.  I want to assure this Committee that, simply because people write to me on a first-name basis, it does not play any part of my thinking or any part in how I approach that.  I look at the points that are made, and I put those points down in my draft report and I put down my response.  At the end of the day, I think of it as part of the issue of confidence, and, if I am sending the same report to the complainant, the Lord Chancellor and the commission, everyone sees what I have received, everyone sees what I have considered and everyone sees the view that I have taken on it.  So, that is the way that I approach that. 

 

If it were helpful to the Committee, I would be very happy to try to find and quote to you what I said in my annual report on this.  I will send you a short note on that specific point.

 

Mr McCartney: I know that you have to reflect on this with hindsight, but can you give us some insight into what you would have to hear or what would have to be relayed to you to change your opinion from something having the appearance of bias to it having the perception of unfairness?  Can you explain what the difference between those two phrases is, even in general terms?

 

Mr Singh: I will try to see if I can find what I said on the point that you are talking about.  This is what I said on that point.  Page 9 of my annual report 2011-12 states:

 

"The complainant had been informed that the Commission had met and taken decisions which included recommencing the competition before a new selection committee."

 

You will recall that there was a discussion about what "recommencing" meant.  It continues:

 

"In his view this had direct implications for his application as well as constituting unfairness which amounted to maladministration. The Lord Chief Justice (in his capacity as the Commission’s Chairman) referred to the reasons why the Commission had adopted this course of action and also confirmed that the implications for the complainant had also been discussed before a final decision was taken. My initial view was that this aspect of the complaint could constitute maladministration because the complainant had not received any feedback formally about the application as part of this competition.

 

The Commission responded to my draft findings (as it is entitled to do within the statutory framework) by drawing my attention to its Feedback Policy and also pointed out that the complainant had been offered feedback shortly after interviews had taken place but this had been refused. In my final report I decided that the existence of a Feedback Policy and the Commission’s adherence to it meant that it was not appropriate to make a finding of maladministration. I recommended that the Commission review this policy in terms of its existing time limits to candidates for seeking feedback, placing the onus on candidates to actively seek feedback, and also to consider how the policy should apply to those candidates who had any grievance about the selection process and who might also wish to make a complaint."

 

Mr McCartney: So, because the complainant did not want to hear the feedback, it changes from "could constitute maladministration" to "appearance of bias" and then "perception of unfairness".

 

Mr Singh: That was part of it.  The other point that I have made is the fact that it had a feedback policy and a structure.  My role here is to look at what systems are in place for dealing with the appointments process.  What I have to look at is whether those systems and procedures have actually been adhered to and how they operate within that system.  If there is any movement outside those parameters, I have to come to a view about the seriousness and significance of that lack of adherence.

 

Mr McCartney: OK. I just want to move on.  I assume that NIJAC has a clear set of guidelines as to how to conduct an interview, and it has to adhere to that.  There is no room for interpreting it this way one day and another way another day.  The reason why I am saying this is that I have been involved in appointments myself, and one of the things that always strikes me is that you are given very clear guidelines as to how to conduct the interview, and you are cautioned that if you deviate from aspects of it, the competition could be declared null and void.  One of them in particular is around scoring and moderation.  You are always advised, in all circumstances, to conclude that on the day of the interview.  We have a situation here where that does not happen. 

 

I find it difficult to understand, even allowing for the fact that another part of the competition has still not been run.  I do not think it is proper that that could be used as a way of saying that we do not have to conclude the moderation.  I cannot see that in the rules.  I can understand that it might be wrong and it might be open to scrutiny whether or not you can say, "We have run the competition, but now we are going to have another aspect of it".  Even that in itself is worth scrutiny, but the advice they are given is that moderation should be completed.

Mr Singh: I think I have also told you that I upheld that aspect of the complaint.  I think I made that point in my comments to you.

 

Mr McCartney: But, having ruled that way, I would say that — this is my personal opinion — in any other circumstance in any public appointment, a person would feel that the competition should have been rerun at that point.

 

Mr Singh: Let me put it this way, because we are coming into constraints territory now.  The point that I would make to you, as I have said very clearly, is that four aspects of the complaint were upheld.  That was one of them.  I have also said to you that, in my view, looking at the entire system, very clearly, one of the other aspects that I upheld was, I think, that a very powerful impetus all the way through for those particular sets of complaints has been the perception of a very strong sense of injustice on the part of the complainant.  I think that that is very clear.  It is very clear to you in the evidence.  It was certainly very clear to me on three occasions. 

 

Again, I would like to make the point to the Committee that I met the complainant on three occasions.  I can assure you that, on each occasion, the meeting was for some hours.  I have to say that, when the suggestion is given that they were fairly short meetings, I do not know what the definition of "short" is.  Certainly, I can assure you that I went into the matter quite exhaustively.  I am very clear about perceptions on the part of the complainant.  I am very clear that I have looked at the matter and tried to be as thorough about it as possible.  At the end of the day, clearly, I would simply say that I think that you have to recognise that there can be a diversity of perceptions about how a case may be handled.  I would like to assure you and the Committee that I have looked at that as far as I can.

 

To come back to your point; that aspect was upheld as a complaint.

 

Mr McCartney: I accept that.  The point that I am making is that people can have perceptions about what is just or unjust.  I am sure that any person who runs in a competition or applies for a job is confident that they are an appropriate candidate.  If they do not get the job, they might feel that they did not get a proper hearing or whatever.  However, if there are clear guidelines that have to be followed and they are not followed, that is improper.  If something is improper, you must act in the proper manner.  I say that on the basis of having asked people who are involved in the field and who give advice to many groups.  They say that if moderation was not carried out in the way that was instructed, the competition would be ruled null and void.  In this instance, it was not.  Subsequently, we find out that if it had been concluded, the person would have been seen to be successful, notwithstanding that another stage may have been introduced.  That is at the gift of the commission. Fine.  Afterwards, when this was investigated — and you accept that they did not follow the guidelines — I cannot understand why someone would not say, "It is an unfair competition and it should be rerun".

 

Mr Singh: I think that we are getting into constraints territory.  You are making a number of assumptions that actually a particular decision taken at that point would have resulted in a particular outcome for a particular candidate.

 

Mr McCartney: I am not.

 

Mr Singh: I am sorry —

 

Mr McCartney: I certainly am not.  What I said very clearly was that if the guidelines that guide me to do an interview say that I must conclude on moderation, and I do not, I am not following the guidelines.  That is what I am saying.  That is factual.  It is neither an assumption nor a presumption.

 

Mr Singh: There are other guidelines which give the committee the authority to introduce other stages into it.  The point that I have made —

 

Mr McCartney: I have no issues with the other stages.  What I am saying is that the guidelines to the commission and the selection panel say that they must complete moderation on the day.  Whatever else goes on round it — whether there are 10 more stages or there were stages the previous day — that is very clear.  It is stated in black and white: moderation must conclude on the day.  It did not.

 

Mr Singh: The point that I have made to you is that, actually, it should have been done in terms of the audit trail.  I simply say that I think that you are making certain assumptions about what should have happened then.  I think that it is for the commission to respond to that matter.  I have set it out very clearly that my view was that the committee had the mandate to continue.  You have made the point that you see the committee's not undertaking or completing that part of the process as a fundamental flaw in the entire process.

 

Mr McCartney: So did you.

 

Mr Singh: No, I upheld that aspect of the complaint.  If it had been a fundamental flaw in the whole aspect of the complaint, that would have been maladministration.

 

Mr McCartney: But you made the observation that that should not have happened.  In other words, they broke their own guidelines.  If someone breaks their own —

 

Mr Singh: I am sorry; out of 26 complaints, the fact that I upheld four of them —

 

Mr McCartney: It does not matter whether there are 40 complaints or one.  If the complaint that they did not follow the guidelines is upheld, you have to act.  If it were the interview panel for your job and you were told that it was not followed properly, I am sure that you would say, "Well, I didn't get a fair hearing".

 

Mr Singh: I notice from the evidence that you have been a lay member of employment tribunals.  Like you, I was, for a decade, a lay member of employment tribunals.

 

Mr McCartney: I was not on a tribunal; I was on a selection panel for jobs.  One of the clear guidelines that we were given when we were following the procedure was that scoring should be completed on the day.  It should not be done afterwards, for obvious reasons.  A person could change their mind overnight, or something could happen outside the room.  It has to be done inside the room.  That is a clear guideline.  If you are given that guideline, you have to adhere to it or you are not following the procedures properly.

 

Mr Singh: Well, I have been involved in different selection processes.  That is simply the point that I would make.  What I saw was something that certainly should have happened.  I think we are looking at this from slightly different perspectives, because your view is that that created a situation in which the whole thing should have stopped.

 

Mr McCartney: Well, what is the point of having it as a guideline?  If you do not have to do it, why write it down?

 

Mr Singh: Well, what I see here is that the commission is an independent body with a remit to promote confidence in the integrity of the appointments processes for appointing judges.  That is what the commission is there for.  People have to have confidence in the way in which it goes about its business.  My role is actually in trying to assist that by dealing with complaints when they are made to me.  In this case and others, one of the things that comes through very clearly is that the commission has an approach where, quite rightly, it makes sure that the commissioners involved in running the selection competition are not the same commissioners who deal with the complaint, so it has a different perspective.  From memory, in this case, three commissioners were involved in sitting down, drawing up the advertisement and job specification, working to, as you put it, the kind of general guidelines that the commission has, and also, in this particular competition, deciding that they wanted to introduce that additional stage.  My understanding, from the material that I and you have seen, is that it wanted to introduce that because it felt that it was unable to come to a clear view on the candidates.

 

When it came to the question of a complaint, my role as ombudsman was very clearly to go through and look at all the documentation that the selection committee looked at.  One of the other complaints was that the complaints committee did not look at that.  The complaints committee actually looked at that in some detail.  It came to the view that, yes, there was guidance, but the marking, for various reasons, was not concluded, but it came to the view that that did not create a fundamental flaw.  You take a different view on that, which of course is your prerogative.  All that I can say to you is that I have looked at this material in great depth and thought about it, and so have you.  I looked at it from the point of view of the process as a whole.

 

There are important broader issues, if I can come back to something that the Chair said at the beginning.

 

The Chairperson: Just before we get to broader issues, members are asking about specifics and at times you are elaborating way beyond that, so we are trying to concentrate —

 

Mr Singh: I am trying to help you.

 

The Chairperson: I appreciate that, but we are trying to constrain responses to this specific question.  Do any other members want to ask questions at this stage?

 

Mr McCartney: In my opinion, the reason the guidelines are there is to ensure that we do not end up with people saying, "Well, maybe today but not tomorrow".

 

Mr Singh: Of course, guidelines are there to be adhered to.

 

Mr McCartney: And if they are not adhered to, there should be sanctions.

 

Mr Singh: I do not think there is anything more I can really add to that.

 

Mr McCartney: OK.

 

Mr Singh: I have set out very clearly why I came to the view that I did.

 

The Chairperson: What would need to happen for you to find maladministration in a competition?

 

Mr Singh: I can give you an example, but it is not an example from Northern Ireland.  In addition to the cases that I have dealt with in Northern Ireland, I have been appointed on about a dozen occasions to be a temporary ombudsman in England and Wales when the ombudsman over there had some kind of conflict of interest.  Over there, the ombudsman deals with judicial conduct as well as appointments.

 

I do not have the annual report with me, so I cannot quote the thing off-hand, so I will have to do it briefly.  It was a judicial conduct matter where the individual came before a panel.  The material that was sent to the individual concerned focused on certain issues, but when the individual came before the panel, other issues were dealt with and put in front, so the individual was being asked or questioned about matters about which that individual had not had any prior notice.

 

That was absolute unfairness.  My recommendation in the draft report to the Lord Chancellor, and it also went to the Lord Chief Justice for England and Wales, was that the panel — and this was not commenting on the substance or otherwise of those issues — should be ruled null and void and that a fresh panel with a fresh set of people should be reconstituted.  That happened last year.  The Lord Chancellor and Lord Chief Justice agreed with my draft views, so by the final report, which went to the complainant in that case, the Lord Chief Justice and Lord Chancellor agreed with my view that that was maladministration.  They agreed that a fresh panel should be constituted and the individual concerned should have advanced notice of the matters.

 

I do not know whether that is helpful.  Unfairness which permeates the entire process —

 

The Chairperson: I am trying to understand this grasp when you keep saying that you look at the entire system.  I think to myself:  here was the competition, here was a moderation process, they counted four out of five, then they stopped and at that point decided, "We are going to add a new stage into this".  It was not before; it was at that point that there was a new stage.

 

What you found was that they were wrong in failing to complete the moderation process and have that properly audited.  You looked at it in the round, however, because the system allows them to have a second stage, even though the second stage is introduced at a peculiar point, then that means that it is not maladministration.

 

Mr Singh: No, no, Chairman.  Let us just unpack that a little bit.  What happened here was that the selection committee clearly met, and obviously as part of those discussions they clearly came to a view.  I am not here to comment on this question of whether candidate A or candidate B should have been appointed.  That is not what this process is about.

 

What happened, clearly, here was that, as part of that discussion, the committee came to a view that it was unlikely that it was going to have a clear-cut differentiation.  I know where there are issues here about this question of numbers, right, but that committee came to that view.  Now, had there been nothing in the guidance to say that you can actually introduce a fresh stage, clearly that would have been absolutely unfair.  However, they had the remit to be able to do that.

 

Now, what they did not do was actually complete the scoring.  If they had completed the scoring, that still does not mean that they did not have the remit to go on and have another stage.  So, I think that we have got to be clear here about what we are actually saying.  I think that what we are saying is that that selection committee did not complete that particular part of the selection process.

 

Mr A Maginness: Thank you very much for coming; it has been very useful.  We are looking at this, and my colleagues are very right to say that we are not trying to rerun this competition.  We here cannot determine who was right or wrong in terms of the individual candidates.  However, it is fair to say that both candidates were suitable for appointment.

 

Mr Singh: I do not think that that is for me to say.  May I just make another point on this?

 

Mr A Maginness: Yes, certainly, of course.

 

Mr Singh: I think that one of the issues here, and this, again, is a matter for the commission — it may or may not be a matter for you to think about.  All of you will be aware of the review of criminal justice.  It is quite interesting if at this point I quote from the first annual report:

 

"The recommendations ... envisaged that a Judicial Appointments Commission would enhance public confidence by providing an appointments process that was 'transparent and responsive to society’s needs on the one hand, but on the other must be clearly seen to be insulated from political influence'."

 

Clearly, there is an issue there — all sorts of issues — about the relationship between a body such as the commission and you.  There is a question about how a body like that might be constituted.  There is certainly, I think, a question — and one could look back at this case, for example.  Although it is not for me to say, one might ask the question. In fact, I have said this on page 19 of my 2010-11 annual report:

 

"Another feature of this particular competition is that there were a small number of candidates. In addition to considering whether or not there is a sufficiently large enough pool of candidates to interview within any competition, the Commission also needs to consider its general duty to promote diversity. I recommend that the Commission introduces a commitment to satisfy itself that there is a sufficient pool of candidates in any competition and that the general duty in respect of diversity had also been taken into account."

 

I know that I risk being told off by the Chairman, but there are broader issues, as well as this individual case.  The thing for me is that, if one looks at these complaints — all three sets of complaints — the fundamental issue here has been that there is candidate A and candidate B, and if candidate A is, for whatever reason, ruled out of the process, candidate B ought to have been appointed.  I paraphrase, but that is a very strong element in the way that the complaints have been put.

 

Mr A Maginness: Yes.

 

Mr Singh: And I think that it raises the broad question about a competition of this seniority — of this importance, because this is important in the context of the administration of justice in Northern Ireland — about looking at the pool of candidates and its size, the number of candidates that you get, etc.  Again, as someone who has been involved in selection for a lot of processes, I personally have not been involved in many processes where there are simply two people at that sort of level.

 

Mr A Maginness: Yes, although my understanding is that they were shortlisted.  I think that there were other applicants but, nonetheless, you are not making any comment on merit in relation to either candidate.

Mr Singh: No.  I do not think that it is my place.

 

Mr A Maginness: I understand the point about a larger pool and all the rest, but we are at the point where there were two candidates.  That is the situation that we were in.  Perhaps a broader issue is this:  you made certain recommendations to the commission, and one of those recommendations was in relation to:

 

"adopting a general policy that no formal part of the appointments process to fill a post will be made unless any outstanding complaints process relating to the same competition has been completed."

 

That was your recommendation in your report, which was from March 2012.  However, the point that I am making is about the recommendations that you make to the commission:  are they binding on the commission or has the commission got an option whether or not to accept that recommendation?

 

Mr Singh: I think that, as with other ombudsmen, my recommendations are not binding.  They are for the commission to consider and take into account.  This is common, not just to my role as ombudsman.  If you look at other ombudsmen's jurisdictions, you will see the same.  The issue here is that I have to work on the basis that people will look at what I have got to say and treat it seriously.  What that means for me is that I have to, in turn, look at the issues that I am considering thoroughly and put forward what I hope are clear and persuasive reasons why I think those recommendations should be taken up.  I also hope that those who consider those recommendations, particularly independent public bodies, and particularly an extremely important independent public body in a constitutional architecture, will seriously consider and take on board what I say.

 

Mr A Maginness: Did you find it unusual that the commission proceeded to make a recommendation despite the fact that the complaints process had not been exhausted?

 

Mr Singh: I was very surprised.  I was obviously surprised, and that is why I felt that I should comment on it in my report.  I also felt that I should make a formal recommendation to the commission.

 

Mr A Maginness: That is very helpful. 

 

Now, the commission recommended a candidate on 28 October 2009, and then on 8 March 2010, that candidate was interviewed by the Lord Chief Justice/chair of the commission.  You commented on that.

 

Mr Singh: I did.  Would it be helpful for you and the Committee if I quote that?

 

Mr A Maginness: Yes, indeed, that would be very helpful.

 

Mr Singh: Absolutely.  Again, it is on page 19 of my annual report 2010-11:

 

"One aspect of the complaint has touched on the differing responsibilities which the Lord Chief Justice has in his capacity as Chairman of the Commission, and as Head of the Judiciary.  It is possible that the exercise of these two roles may give rise to confusion on the part of others, although not by him."

 

I say that because I discussed it with him.

 

"I note that a recent competition for other judicial posts which was undertaken by the Commission has resulted in the interviews with successful candidates being undertaken by another senior member of the judiciary rather than the Lord Chief Justice in his role as Head of the Judiciary."

 

So, that was clearly the point that I made there.  I know that I commented on this in another part of the report.  Will you give me 10 seconds to try to find it?

 

Mr A Maginness: Take your time.

 

Mr Singh: The complaint was about the fact that another candidate had been seen, so I need to try and find — that was in my annual report for 2011-12:

"As part of my investigation into these complaints I studied the documentation".

 

Oh, I beg your pardon; I am reading another bit.  I may have to come back to you.  While you are asking the question, and without being rude, I will listen to you and try to find that page.

 

Mr A Maginness: Leading on from that, there clearly is a problem in a situation —

 

Mr Singh: Sorry; I have just found it. 

 

This is page 13 of my annual report of April 2010 to March 2011:

 

"The complaint had also noted that the Lord Chief Justice had interviewed the other candidate and felt there was no provision for this within the rules of the competition.  The Lord Chief Justice had confirmed to me that he had interviewed the other candidate in his capacity as Head of the Judiciary which he said was the normal practice for candidates who had been recommended for appointment to judicial office and also that officials in his private office had been involved."

 

The next paragraph, on page 14, states:

 

"I noted that the meeting between the other candidate and the Lord Chief Justice occurred because it was normal practice for him, as Head of the Judiciary, to meet those recommended for judicial appointment."

 

It then goes on to the way that they were having their meeting:

 

"I upheld the aspect of the complaint raising the issue of inappropriate involvement by persons outside the appointment process but did not consider this had resulted in a basic flaw in the competition for this particular role.  I did not uphold the aspect of the complaint that the additional interview with the Lord Chief Justice had resulted in unfairness to the complainant because it was an interview that would normally be held with a candidate who had been recommended for judicial appointment."

 

Mr A Maginness: Yes, but obviously that was a problem for the complainant and was rightly brought to your attention.  However, the point I am making is that the confusion or coincidence of roles between the Lord Chief Justice and the chair of the commission at the same time gave rise to this problem.  In such circumstances, you recommended that, if there were a conflict, some other member of the judiciary should do the interviewing instead of the Lord Chief Justice.  I think that is what you said.  Are you of the view that the conflict between being Lord Chief Justice and chair of the commission is something that should be looked at?

 

Mr Singh: I have looked at the evidence that has been given.  I think that, as a Committee, you have three models.  Before considering the structural models, there are three elements that you have to look at.  One is that an independent judicial appointments commission inevitably has to have some judicial members on it, if you think about people with appropriate skills and knowledge about the judicial process.  Clearly another group will perhaps be representatives of the legal profession.  Obviously you will have people who aspire to be judges and who come from the legal profession.  A third group, clearly, are people who are neither judges nor lawyers.  The appointment of judges, and this is something that I have written and thought about, is not a matter that should be left to judges and lawyers.  It is a matter that the wider public should have an interest, because it concerns the administration of justice, and that is where the Committee has a very important and legitimate interest.  Those are the principles.

 

Look at England and Wales, Scotland and here.  In England and Wales, you have the Judicial Appointments Commission, which has 15 members.  It has five judges, who are nominated by the Judges' Council, two lawyers — one solicitor and one barrister — who respond to public advertisement, and then you have the remaining members, of whom, if my maths is right, five are lay people who respond to an advertisement and the chair, who is a lay person.  You also have two further members who are lay people, one of whom is a lay magistrate and the other a lay tribunal member.  That is the model in England and Wales.

 

In Scotland, you have a judicial appointments board composed of 10 people, five of whom are lawyers and five of whom are non-lawyers.  They respond to advertisements, and the lawyers, or some of them, represent their professional bodies:  in other words, they are nominated.

 

In Northern Ireland, we have 13 commissioners if you count the chairman.  The chairman happens to be the Lord Chief Justice.  As I wrote in 2007 — and I am not aware of the situation having changed since then — the five judges on the commission are nominated by the Lord Chief Justice.  You also have the two legal members, who are nominated by their respective professional bodies.  Then you have the five remaining lay members, who respond to public advertisement.

 

There you have three different models.  You were kind enough to quote me when I last appeared before you when I talked about the raison d'être for having the judicial appointments bodies.  They should be emphasising their independence and should be seen as independent bodies.

 

One question that you as a Committee ought to be thinking about is what structures would best enhance public confidence in the process for appointing the judiciary, recognising that you have to have some judges involved, some element of the legal profession and, clearly, some element of the lay public.  I remind you, if I may, that it has to be seen as insulated from political influence, in the words of the review of the administration of criminal justice.

 

Mr A Maginness: Thank you for that.  You adverted to persons outside the selection process being in contact with, or doing things in relation to, the process.  Did you find that unusual?

 

Mr Singh: Let me assure the Committee that that was nothing to do with the selection process:  it was an administrative task, which involved writing a letter.  If you have an independent public body like the Northern Ireland Judicial Appointments Commission, all the processes, including correspondence, should be undertaken by officials in that organisation.   In a situation where you perhaps have an individual with the two roles, I certainly do not take the view that, because a particular letter was written, this is an argument that there should be a separation. You have to look at this in the round.  That was a complaint, and, obviously, there was a factual basis to it.  Clearly, the letter had been sent to the other candidate inviting him to come in, but it had gone from, perhaps, the wrong office.  The person may have been going in to see the Lord Chief in his capacity as head of the judiciary, but, in my view, it is still linked to the selection process.

 

Mr A Maginness: You saw that as improper but not fatal.

 

Mr Singh: Yes.

 

Mr A Maginness: My understanding is that a letter was written to DETI and the FSA.  Was that an unusual thing to have happened?

 

Mr Singh: I am afraid that I cannot comment on that.  You are raising issues to do with another candidate.

 

Mr A Maginness: Yes, you cannot comment on that. 

 

Was NIJAC's seeking to withdraw a recommendation to the Lord Chancellor an unusual thing to have happened?

 

Mr Singh: I am not sure that that is one of the complaints.  I do not think that it was put in that way.

 

Mr A Maginness: Whether it was a complaint or not, do you regard that as —

 

Mr Singh: The point that I am making is that, if it is not part of the complaint, it is clearly not part of my remit.  If you read the legislation, you will see that I do not have power to pick up points myself.  What I have to do is listen to what is being said.  If I may say so, I think that you are talking about where I picked up something analogous to that, so let me try to find a way that I can answer that.

 

I raised this issue with the commission.  The complainant raised all sorts of concerns about the lack of information.  The complainant was concerned about the lack of transparency.  The complainant was also concerned about the delay in communicating with him.  My initial view of the maladministration aspect on page 9 of my annual report of April 2011 to March 2012:

 

"The complainant had been informed that the Commission had met and taken decisions which included recommencing the competition before a new selection committee.  In his view this had direct implications for his application as well as constituting unfairness which amounted to maladministration."

 

In fact, I think that I read this out before:

 

"The Lord Chief Justice (in his capacity as the Commission’s Chairman) referred to the reasons why the Commission had adopted this course of action and also confirmed that the implications for the complainant had also been discussed before a final decision was taken.  My initial view was that this aspect of the complaint could constitute maladministration because the complainant had not received any feedback formally about the application as part of this competition."

 

We then had the issue of feedback policy.  I have read all the correspondence to do with this case.  I suspect that you probably have all the material as well.  I am sure that it would take you a fair bit of time if you sat down and started to go through it. 

 

I do not think that I can go any further than that, although on page 10 in the same annual report:

 

"The complainant had also raised the issue of not being provided with material which I have seen.  I did not consider that there had been any maladministration for the complainant in terms of non-disclosure."

 

Let me say that this is about material relating to the complainant.  There were lots of requests for information about other candidates.  For the reasons that we have discussed, you will now understand why the commission and I did not provide that information.  The report continues:

 

"However, I accepted that there may be concerns on the part of the complainant in this regard.  I suggested that the Commission may wish to give further consideration to whether it felt able to disclose this material in a redacted form and specifically where it related to the complainant's application and the decision to recommence the competition."

 

In other words, clearly, the commission met regularly as a group and discussed this on a number of occasions.  It had minutes and a record of those discussions, which, of course, did not simply consider the position of the complainant; they clearly considered the position of other people.  It comes back to the question of how to look at the issue from the point of view of confidentiality and transparency and striking an appropriate balance between the two.  I did suggest that, perhaps, a redacted form of some of that material might, at least, have helped the complainant's understanding.

 

Mr A Maginness: I have one last question, Chairperson.  The commission decided to recommence the competition.  I am not quite sure of the date, but it was after the Lord Chancellor had given his opinion on the other candidate, and that was accepted by the commission.  That left one candidate, namely the complainant, in the pool.  At that point, the commission decided to recommence the competition.  Was that not a very unusual thing for the commission to decide to do?

 

Mr Singh: That is not part of our remit.  I may have a view, but it is not appropriate to give that view here.  It seems to me that the issue, were I to look at it from outside as a layperson and not as the ombudsman, is that, if you want to promote as much confidence in a process as possible, you try to be as transparent and timely as you can.  I am not saying this to criticise anyone in the commission; there may be quite legitimate reasons why the timescale stretched as it did.

 

Having met the complainant on three occasions, there is no doubt in my mind that the whole process — the complainant made this very clear to me each time I met him — has taken its toll on him as an individual from the very point at which he made the complaint.  In this area, when individuals make a complaint, it is clearly their perception that it is not necessarily an action that they would take lightly.  If there is then a process that takes a considerable period, that can put people in quite a difficult position.  I am satisfied that, in administrative terms, the commission met on a series of occasions and considered that in some detail.  The other side is that it took its time and spent a lot of time on it, which clearly had implications for that individual.  You will have seen that I sought to get an understanding of the word "recommence", and, effectively, it meant that the competition was coming to an end and a new and fresh competition was starting.

 

Mr A Maginness: I take the point that you do not want to comment on that decision, but is it not pertinent to the complaint made by the complainant that there was a recommencement instead of a conclusion to the competition?

Mr Singh: With this complaint, there was a considerable exchange, throughout the whole process, of correspondence between the commission and the complainant's legal representatives.  Page 19 of my annual report from 2010-11 states:

 

"I note that Northern Ireland has a relatively small legal and judicial jurisdiction so that any delay in appointments can potentially have a considerable impact on court business and confidence in the administration of justice can also be affected by the passage of time. In addition to meeting business need I suggest that timeliness in completion of the process should be an aspect of excellence in any selection process. With these issues in mind I recommend that the Commission seeks to complete competitions without undue delay and also make clear to candidates in its competition literature that any timescales should be regarded as being indicative only."

 

That reflects that there may be reasons for some delay.  One of the other issues that we were talking about —

 

Mr A Maginness: May I stop you on the issue of delay?  The decision to recommence was taken in about June 2011.

 

Mr Singh: Yes, it was.

 

Mr A Maginness: The new appointment that arose from that process did not take place until 8 April 2013.  I know that other High Court judges were appointed, but the new High Court judge appointed as a result of the recommencement was not sworn in until 8 April 2013.  I understand that the new judge had other duties in an ongoing inquiry, but there did not seem to be any great hurry with that appointment despite the point being made about timescale and delay.

 

Mr Singh: The only point to make is that it was a different competition.  I did not receive any complaints about that competition, and, therefore, it was not part of my remit.

 

Mr A Maginness: I understand that.

 

Mr Singh: I will pick up on your other point.  There were different views on what was going on in the correspondence.  Letters exchanged about possible legal proceedings were very much part of that.  

 

Page 10 of my annual report of 2011-12 states:

 

"Another aspect of the complaint was that the Commission’s decision was ultra vires because of its unfairness and irrationality".

 

This is quoting letters from the complainant's lawyers to the commission.  As a lawyer, you will appreciate that.  My report continues:

 

"and this constituted further evidence of the appearance of bias throughout this competition. The Commission had taken the view that the course of action adopted by it was permissible and not precluded by its statutory obligations. This is an issue on which there are differing legal interpretations."

 

That was very evident from the correspondence.

 

"I took into account the considerable exchange of correspondence between the Commission and the complainant’s solicitors and other documentation. I did not consider that there had been maladministration in terms of the Commission’s decision making or the appearance of bias throughout this competition."

 

The complainant's solicitors were saying that what had happened was bias.  The commission, presumably after receiving advice from its lawyers, was saying that that was not the case for this, this and this reason.  There were two sets of differing legal interpretations, but this was not tested in a court situation.

 

Mr A Maginness: We know that, and Judge Marrinan gave his explanation for that.  However, it seems extraordinary that the commission, having spent so much time, decided to abandon the process of appointment and recommence the competition.  It seems to be quite an extraordinary decision.

 

Mr Singh: I am not a commissioner and am not part of the commission.  It seems to me that what we should be thinking about are selection processes that meet the business need.  The business need here is to ensure that the process is undertaken as efficiently and in as timely a manner as possible, and also, I think, in a way that is receptive and sensitive to candidate perceptions.  If you are to have confidence in the administration of justice, judicial appointments, in my view, are critical to any democratic society.  What do I mean by that?  Essential to the administration of justice is the concept of equal treatment.  Everyone who comes to the courts wants to see a judiciary that is appointed on merit and which is sensitive and responsive to that.  What is important is that the processes for appointing the judiciary have to be as transparent as possible in the context of a selection process that respects the confidentiality of all participating candidates, whether or not they are complainants.  It is important that the processes are robust and thorough and that, if there are any concerns, they are investigated as thoroughly and as impartially as possible. 

 

Also critical to raising candidate confidence is timeliness.  I am not talking only about judicial appointments; it is important in any appointments process.  In making those comments, I do not think that I have a remit to comment on the reasons why it took so long for the commission.  I make the general point, and I made the recommendation that I think that, if the commission is to learn from this and think about other appointment competitions, it must think about timeliness.

 

The Chairperson: Having said all of that, do you think that the public can have confidence given that, for this competition, you upheld a series of complaints?  The commission failed to complete its moderation.  The Lord Chief Justice's office was involved when it should not have been, and you upheld that.  The commission recommenced the competition, which, in effect, you said, was ultimately abandoning it and starting anew.  It took almost four years to complete.  Given those complaints, can the public have confidence that this competition was carried out in a way that the public can say was appropriate?  Can the public say that they are confident that NIJAC acted with the utmost integrity and that we now have the right outcome?

 

Mr Singh: All that I can do is point to the fact that I looked at this case and came to a view on it.  I have tried to promote confidence in the way that I arrived at decisions.  As ombudsman, I certainly do not expect that everyone will agree with my decisions.  I also do not expect that, particularly in a case like this in which, shall we say, a view was taken that I did not agree with, I should have to provide to the complainant's representatives all the material that I had.  I did not think that that was appropriate.  I always try to ensure that there is as much confidence as possible in individual cases.  The way that I believe the legislation allows me to do that is by trying to put as much material as I feel I can into the public domain.  In this case, I put 17 pages into the public domain.

 

The Chairperson: Thank you very much for coming to the Committee.  I acknowledge and appreciate that you did so voluntarily.  This is an area that we have to consider, and we are trying to do our best.  That is why we have invited others to the Committee.  I hope that they show the same willingness as you have, as they have an insight that I believe would be very helpful to the Committee.  I appreciate your coming to the Committee and making yourself available.

 

Mr Singh: Thank you, Chairman and members of the Committee.  My perspective is that this is a very important Committee.  As members, you have a democratic mandate.  You clearly have a legitimate interest in the administration of justice, and I believe that judicial appointments are an important part of that.  Whether or not you have an appropriate remit to ask me questions, I am happy to come at any time if you extend that invitation.

 

The Chairperson: Thank you.

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