Barriers to High Court Appointments in Northern Ireland: A Report for the Northern Ireland Judicial Appointments Commission

Abstract 1:

This report continues the longstanding interest which scholars in the School of Law at Queen’s University have maintained in the operation of the legal system in Northern Ireland and the cooperation which has been enjoyed with the Northern Ireland Judicial Appointments Commission. The research was carried out by Professors John Morison and Brice Dickson (both of whom have been involved in earlier work, with Professor Morison also serving as a Commissioner with NIJAC from June 2005 to June 2012). Ms Leah Trainor, a PhD researcher in the School of Law, provided valuable research assistance and Ms Susan Burton helped with format and layout.
The project team is indebted to NIJAC not only for the opportunity to carry out this research but also for the support, encouragement and assistance of the NIJAC Steering Committee appointed to oversee the project, and, particularly, Ms Adeline Frew who worked tirelessly to ensure that we were able to make the necessary connections with all parts of the judiciary and legal profession to assist our work. Of course our greatest debt is to those judges and practitioners who gave their time and offered their valuable opinions. What follows is not a direct report of these sometimes differing views. It is rather an account of the challenges around ensuring that the appointment process to the High Court in Northern Ireland continues to produce outstanding candidates for this most important role. Much of what we have discovered follows the pattern in England and Wales as shown by research there. There are however significant local differences in the Northern Ireland context, and a series of additional challenges arising from the small size of the jurisdiction, the nature of the applicant pool and a variety of other circumstances. The Report seeks to outline these additional obstacles, while emphasising also the positive factors which continue to make appointment to the High Court the pinnacle of a career in law for many of the most talented lawyers in the jurisdiction. The Executive Summary at the beginning of the Report outlines the structure of the Report while the Compendium of Recommendations to be found at the end provides a digest of some of the points for further consideration that our work has prompted. The views expressed are those of the authors rather than representing the position taken by NIJAC. We urge readers to consider the Report as a whole, and to engage in the further discussion about the future recruitment to the High Court that we hope such reading will encourage.

Abstract 2:
The research for this report was commissioned by the Northern Ireland Judicial Appointments Commission (NIJAC) in December 2018 and the report was finalised by the researchers in May 2019. The commission was prompted by the fact that in recent competitions for High Court appointments NIJAC had been disappointed that more applicants did not apply and that not all of the advertised posts could be filled. We were tasked with looking for and providing evidence relating to the real and perceived barriers to potential and actual applicants.
The report builds on research previously conducted for NIJAC by ourselves and others on why people were or were not applying for judicial office in Northern Ireland (2008) and on the meaning of ‘merit’ in competitions for judicial appointments in Northern Ireland (2013). It also takes account of research conducted on the attractiveness of judicial appointments in the United Kingdom more generally, such as by Genn (2008) and Turenne and Bell (2018).
Chapter 1 sets out briefly the reasons for carrying out the research at this time and the methodology we used in doing so. Apart from considering the literature on the subject to date, we interviewed 25 lawyers face-to-face, including 15 serving or retired judges. We also conducted group consultative meetings with the Presiders of a range of tribunals, solicitors and lawyers in public services. In all we heard the views of 50 lawyers. A reasonable balance in terms of gender and professional background was achieved, although nearly all of those consulted were relatively senior, being either judges or falling within the applicant pool for the High Court. The chapter then explains what the functions of the High Court are in Northern Ireland and summarises the results of competitions for appointment to the High Court since NIJAC was established in 2005. Since then, across seven competitions, there have been a total of 55 applications. These were reduced to 20 at the shortlisting stage: 17 were from barristers, 2 were from solicitors and 1 was from a County Court judge. Of the 10 applicants who were offered a post, 9 were barristers and 1 was a solicitor.
Chapter 2 summarises the relevant research already conducted relating to the subject- matter of this report. It looks in turn at perceptions of applicants in the pool for High Court posts, at the impact of the rules on pay and pensions for High Court judges, at the nature of a High Court judge’s job today, and at the application and selection process. The research seems to indicate that the type of applicant most likely to succeed in a competition for a High Court post is a Queen’s Counsel of many years standing, that the relatively low salary attached to a High Court post and the recent changes to the pension arrangements for High Court judges are strong disincentives to potential applicants, that the nature of a High Court judge’s job has changed significantly in recent years to the point where to some it is no longer deemed to be worth the sacrifices or the intangible benefits which accompany appointment to the role, and that for many potential applicants the application and selection process is very daunting.
Chapters 3 to 7 then consider in more detail the five types of barrier to High Court appointments which we think are most relevant in Northern Ireland today. At the end of each of these chapters there is a series of short recommendations for NIJAC to consider.
Chapter 3 shows that in Northern Ireland the pay and pension issues are probably just as discouraging to many potential applicants (especially senior barristers and solicitors) as they are in the rest of the United Kingdom.
Chapter 4 indicates that many senior practitioners no longer wish to apply to become a High Court judge because they are put off by the nature of the job. It is perceived to be a role which has become more demanding than ever in terms of workload, responsibilities and publicity. Some of the public service expectations that may have been transmitted when the appointment process involved a personal approach (the ‘tap on the shoulder”) are less easily suggested when the applicant is required to make an application on his or her own initiative. Chapter 4 also reinforces the view found in the wider literature that the nature of legal practice and the role of the judge have both changed. Private practice now allows for more flexibility than in the past, affording greater control over the work-life balance, and this is valued highly by well-established barristers and solicitors. In contrast there are elements of the judicial role, such as the level of work-load, the nature of cases, the number of personal litigants and the obligation to do whatever work is allocated to you, that are less appealing. The absence of opportunities to work part-time on the bench, as well as increased public criticism and relatively limited support in terms of judicial assistants are also explored here.
Chapter 5 takes a detailed look at all elements of the recruitment process for High Court posts in Northern Ireland. It identifies some features of the process which might be altered in order to make it less intimidating and, perhaps, more likely to attract a wide range of applicants.
Chapter 6 examines some of the traditions and assumptions which may perhaps operate, consciously or otherwise, to dissuade certain categories of applicants from applying, especially solicitors and judges who are already serving in lower courts. The lack of opportunities for part-time working may again be a factor, especially for those with caring responsibilities or those potential applicants who place a high premium on maintaining a healthy work-life balance. We draw attention to the benefits of NIJAC appointing temporary High Court judges, as it is empowered by statute to do.
Chapter 7 addresses head-on the startling fact that no County Court judge has been successful in a High Court competition since NIJAC was created in 2005. We found a lot of dissatisfaction amongst the County Court judiciary because of this perceived barrier to promotion. We studied carefully the relative merits and demerits of a hypothetically excellent County Court judge and a hypothetically excellent senior barrister or solicitor and could see no obvious reason why the former’s candidacy for the High Court should be so much less likely to succeed than the latter’s. We suggest that there might be unconscious bias at work, either on the part of potential County Court judge applicants who are failing to apply or on the part of members of NIJAC’s Selection Committees when they are assessing a County Court judge’s abilities,
qualities and skills. We can see advantages in a future where talented lawyers who join the judiciary at lower levels are as likely to be as successful in a competition for a High Court appointment as a talented legal practitioner might be.
Chapter 8 reiterates the sets of recommendations laid out at the end of Chapters 3 to 7, but without any further comment.