Justice chief warns against ‘positive discrimination’

Lord Chief Justice Sir Declan Morgan
Lord Chief Justice Sir Declan Morgan

Northern Ireland’s most senior judge has warned against using positive discrimination measures to propel more women into the region’s top legal posts.

There are no female High Court judges in Northern Ireland, while women are also significantly under represented at county court judge and QC level.

But Lord Chief Justice Sir Declan Morgan, in a rare appearance before Stormont’s Justice Committee, insisted that the principle of merit had to be applied.

In a lengthy and wide-ranging evidence session with committee members, Sir Declan also stressed the need for judges to “think smart” about how they explain potentially controversial sentencing decisions to the public.

He also revealed that a bid to attract two members of the public to join the group he established for the very purpose of helping to provide more clarity around sentences had an “embarrassing” outcome, as nobody applied to fill the posts.

Sir Declan did not directly refer to the recent political row over why bail was denied to certain Union flag protesters.

He did stress the importance of judicial independence, but made clear that did not mean judges were beyond criticism.

“I realise some judicial decisions will be unwelcome and hard to understand and I have no objection to decisions being criticised, as long as it is informed criticism grounded in facts,” he said, emphasising the role the media had to play in explaining judgments and rulings.

In regard to the lack of women in top judicial posts, Sir Declan said he was determined to bring about a culture change within the profession to ensure that females were afforded opportunities and helped to reach their full potential.

But the senior judge said giving them preferential treatment in terms of appointments was not the way to do that.

“We cannot use positive discrimination,” he said.

“It would be unlawful for us to do it, and secondly we have to appoint on merit because the statute tells us we have to do that, now somebody could rewrite the statute and the rules could be different.”

The Lord Chief Justice said elements of positive discrimination were in operation in South Africa but warned that they had proved extremely contentious and resulted in dissuading many people from going for jobs.

“That’s the danger we must guard against,” he said.

Sir Declan added: “We can’t take positive discrimination measures in that sense, what we can do is that we can be very pro-active about conveying, particularly to under represented groups like women, that we want women to apply and that we want to ensure to put them into a position to apply.”

He continued: “If you talk to women on whether or not we should be appointing women who don’t come through on merit, universally my experience is ‘please do not do that’, because it just undermines their standing among their colleagues.”

The top judge told committee members that the next four years may bring changes.

“I do feel that what we have managed to do is give the women, who I am talking to anyway, confidence that they are wanted and desired within the judicial system at the highest levels,” he said.

“The outcome of this at the end of the day is whether or not we succeed in encouraging good female candidates to achieve the standing that they should within the profession and come forward and take their positions in the judiciary.

“At the end of the day you’ll have to judge me on whether or not we manage to achieve that. There are six High Court appointments that are going to be made in the next four years on the basis of retirements - at the end of the six High Court appointments I am perfectly happy to come back and you can have a go at me then.”

In regard to the failure to attract two lay members - one from a victims background and one from academia - to apply to join the judiciary’s sentencing group, Sir Declan said it had been “slightly embarrassing”.

“We advertised and I think 19 people who took the (application) pack but I’m afraid we had no applicants, which really surprised me given this issue is as publicly interesting as it is,” he explained.

“But it wasn’t that people didn’t know because, as I said, we had 19 people who actually looked at the pack.”

He said the two members would now be drawn from a list of potential candidates identified by Justice Minister David Ford.

During an almost two-hour appearance before the committee, the lord chief justice also detailed the efforts he was undertaking to tackle avoidable delays in the judicial process and reflected on how the Human Rights Act could potentially affect legislation drafted in the Assembly.

Chair of the committee Paul Givan praised Sir Declan for attending.

“It is a very welcome step,” he said.

“I think it is a sign of maturity within our democratic process.”

Sir Declan said he would be happy to address the committee on an annual basis in the future.