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

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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 53
ecommended 228 a ‘programme of action to secure a judiciary reflective of NI society, in particular by community background and gender, as can be achieved consistent with the overriding requirement of merit’. The Implementation Plan Update 2003 asserts: ‘Appointments will always be made solely on the basis of merit’. These riders do not factor in CEDAW’s temporary special measures provision. Given the importance placed on merit, gender-sensitive criteria for ‘merit’ should be outlined. The Review recommended the establishment of a Judicial Appointments Commission with lay members ‘including both men and women’ 229 and discussions with the Bar Council and Law Society about equal opportunity issues and their implications for the judicial appointments process. The Implementation Plan, November 2001 accepted that ‘the Commission will also have strong lay representation, including men and women drawn from both sides of the community’ but this would be dependent on legislation and subject to devolution. Subsequently it was decided to introduce the legislation and establish the Judicial Appointments Commission prior to devolution. Section 3 of the Justice (Northern Ireland) Act 2002 ‘provides for the creation of a Judicial Appointments Commission (which would be put in place on devolution of justice functions).’ There is, however, now no reference to including women in the 13-member commission. 230 A key objective of the Judicial Appointments Commission is to achieve a reflective judiciary yet section 5 of the Act requires that the Judicial Appointments Commission ‘so far as it is practicable to do so, secure a range of persons reflective of the community in Northern Ireland [emphasis added]’ for selection for judicial office. This further narrowing of the already conservative approach of the Review does not inspire confidence that the nettle of equality for women in this sphere will be grasped. A database of qualified candidates interested in securing judicial appointments 231 and parttime appointment to the judiciary 232 should be considered. The Judicial Appointments Unit, set up by the Northern Ireland Court Service, 233 was developing a new IT system to support the judicial appointments process. ‘Consideration will be given to including a capacity to support such a database in the requirement specification.’ 234 The Review strongly endorsed the continued involvement of lay panellists in youth courts 235 and recommended nominations for lay magistrates from community organisations. 236 An equality screening exercise stated that ‘the policy and the mechanisms for selection within it should positively impact on the Community Background and Gender profile of lay magistrates.’ 237 Subsequent legislation created the new office of lay magistrate taking over some functions of Justices of the Peace and replacing Lay Panellists 238 but makes no mention of nominations from community organisations. 228 Ibid. Recommendation 69 229 Ibid. para. 6.102 and Recommendation 79 230 The Implementation Plan Update, June 2003 notes that the 13 member Commission will include ‘5 lay members’ but makes no comment on the gender composition. 231 CJR para. 6.115 232 Ibid.para. 6.116 Recommendation 91 233 CJR recommendation 86 suggested that the JAC set up such a unit 234 Implementation Plan Update, June 2003 235 CJR Recommendation 114 236 CJR Recommendation 119 237 Equality Screening of CJR 238 Sections 9-11 of and schedule 4 to the Justice (Northern Ireland) Act 2002 54
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Women and the Implementation of the
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5.5 Women Victims Post the Good Fri
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Women’s Rights in Transitioning a
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language of the Agreement) this was
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An overall assessment of the succes
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Page 83 and 84: REFERENCES Bell, C. (2003) PEACE AG
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Page 87 and 88: ____ (2003) ‘New Era for Local Po
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