Agreement Reached in the Multi-Party Negotiations - Transitional ...

than representative. 215 This interpretation has been challenged, 216 noting that legislation on
the appointment to public bodies such as the NIHRC, the Equality Commission and the
Parades Commission 217 has referred to such bodies being representative. The Review’s
insistence on ‘reflective’ seems inconsistent since it refers to groups which are underrepresented
in its exhortation that ‘efforts should be made to stimulate interest in becoming a
judge, especially in sectors which are under-represented or where historically applications
have be disproportionately low. Considerations of gender, geography and community
background might come into this.’ 218 The under-representation of women is one of a
number of imbalances that need to be dealt with.
The Review made recommendations with regard to judicial appointments and
arrangements for ensuring their independence, noting that ‘length of time in active practice
is currently the key consideration’, 219 a criterion that traditionally impacted on women.
Despite increasing numbers of women at the bar and working as solicitors, there remained
obstacles to their securing preferment. Career breaks, family commitments, the nature of
their experience and economic considerations militated against women becoming QCs,
which appeared to be necessary before appointment to the senior judiciary.’ 220 The radical
measures required to deal with this are, however, not contemplated and fall short of the
requirement in the CEDAW for ‘temporary special measures’ aimed at de facto equality
between women and men. 221 The qualifying criterion has since been changed and is now
based on ‘standing’ (i.e. the period since being called to the Bar or admitted as a solicitor
instead of ‘practice’ i.e. the period spent actively working as a barrister or solicitor). 222
While opening up eligibility requirements 223 and changing years of practice requirements
may benefit women, 224 when it came to recommendations, 225 the Review emphasised that
merit must be the key criterion in determining appointments. 226 What attributes, however,
determine merit? These may be subjective, based on male criteria of merit - a seemingly
neutral standard that effectively screen out women. The Review is again emphatic ‘we
should stress that we are not recommending positive discrimination in the appointments
process itself; merit should continue to be the deciding factor.’ 227 Finally, it
215 Ibid.para. 6.87
216 See CAJ response to the Report of the Criminal Justice Review, August 2000
217 The gender balance of the Parades Commission membership was the subject of judicial review
proceedings in 2000. The High Court dismissed the complaint that the Commission was in breach of the
terms of the Public Processions (Northern Ireland) Act 1998 because it contained no women members, or
was invalid on a number of other grounds. The legislation in question stipulated that ‘The Secretary of State
shall exercise his powers of appointment under this paragraph as to secure that as far as practicable the
membership of the Commission is representative of the community in Northern Ireland’. In Re: An
Application by Evelyn White for Judicial Review, The High Court of Justice in Northern Ireland, CARE3208
(Transcript), 18 May 2000
218 Criminal Justice Review, para. 6.114
219 Ibid. para. 6.18
220 Ibid.para. 6.42
221 Article 4, CEDAW
222 Implementation Plan Update, June 2003
223 CJR para. 6.89
224 Ibid.para. 6.90
225 Ibid.para. 6.79
226 Ibid.para. 6.84 and 6.85 ‘While merit should be the deciding factor in individual appointment decisions, it
should be a stated objective of whoever is responsible for appointments to engage in a programme of action
to secure the development of a judiciary that is reflective of Northern Ireland society, in particular by
community background and gender, as can be achieved with the overriding requirement of merit’.
227 Ibid.para. 6.114
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