I was appointed as the first Judicial Appointments Ombudsman for Northern Ireland in September 2006. This role was created by the statutory framework as set out in the Constitutional Reform Act 2005 and provides an independent and external element for those who wish to complain about any administrative aspect of their own experience as an applicant during an appointment process for judicial office.
One of the statutory requirements for my role is the submission of a report at the conclusion of each financial year which details the performance of my functions during that year. In this, my fourth Annual Report, I have reported on one case relating to complaints associated with a specific competition for a judicial role and which was completed during this year. I have also met with different stakeholders and discussed various issues. I welcome any opportunities in Northern Ireland that would allow me to enhance a greater awareness of my role.
I look forward to continuing a constructive dialogue with the Northern Ireland Judicial Appointments Commission and the Northern Ireland Court Service without in any way compromising our respective roles. We all have a shared interest in promoting public confidence in the administration of justice. In terms of my specific responsibility this is to ensure that individual complaints are dealt with expeditiously with as full an explanation as possible being provided. Achieving fairness in judicial appointments, both in fact and perception, is critical to this.
I am also conscious that wider developments have occurred within Northern Ireland during the period covered by this report, not least the devolution of policing and justice powers to the Assembly. This will be my final report to the Lord Chancellor for him to lay before the Westminster Parliament, as required by the appropriate provisions of the Constitutional Reform Act 2005.
I am using this opportunity to repeat the assumptions that I have made in previous Annual Reports and these are:
It is important to ensure that as wide a range of stakeholders as possible understand the workings of the institutions and processes which relate to judicial appointments and the internal and external complaints system.
Finally I would also like to take this opportunity to express my appreciation to Mrs Audrey Fowler for her continuing personal commitment and support to this Office.
Karamjit Singh CBE
Northern Ireland Judicial Appointments Ombudsman
I was appointed as the Northern Ireland Judicial Appointments Ombudsman by Her Majesty The Queen on the recommendation of the Lord Chancellor. It is a new role which formally commenced on 25 September 2006. The key purpose of the Ombudsman’s role is to investigate any complaints received from applicants for judicial office who are dissatisfied with any administrative aspect of the appointment process. This is my fourth Annual Report.
A wide ranging review of the criminal justice system in Northern Ireland was concluded in March 2000. Its recommendations included the appointment of a person to oversee, monitor and audit the existing appointment procedures. This led to the appointment of the Commissioner for Judicial Appointments who carried out a review of the existing processes. This in turn resulted in the statutory establishment in Northern Ireland of both the Judicial Appointments Commission and my own role as Judicial Appointments Ombudsman (during 2005 and 2006 respectively).
The Constitutional Reform Act 2005 provides the statutory framework for the establishment of the Northern Ireland Judicial Appointments Ombudsman. Sections 124 to 131 of the Act 1 define the arrangements for investigating complaints which are made to both the Judicial Appointments Commission and to the Ombudsman respectively and how they are to be reported. There is also provision for the Lord Chancellor to refer any matter for investigation to the Ombudsman which relates to procedures of the Judicial Appointments Commission or a Committee of the Commission. Such matters may relate to procedures generally or to the circumstances of a particular case. The Constitutional Reform Act 2005 provides for the Ombudsman to submit a report at the conclusion of each financial year on the performance of his functions to the Lord Chancellor and who in turn is required to present it to each House of Parliament before publication. This constitutes my fourth such report under this procedure. Copies of the previous Annual Reports can be obtained from the website. The Office of the Northern Ireland Judicial Appointments Ombudsman is defined as a corporation sole and is independent of the Government, the judiciary and the Northern Ireland Court Service.
Appointment to the role of Ombudsman is for a period of five years and the role is part time. Schedule 15 of the Constitutional Reform Act 2 provides for the role of Ombudsman and states that the Ombudsman must never have practised law or held judicial office in the United Kingdom and should not currently be a civil servant, a member of either the House of Commons or the Northern Ireland Assembly or be engaged in political activity as a member of a political party.
Expenditure by the Ombudsman in the discharge of his functions and arrangements for administrative and other assistance to the Ombudsman are met by the Lord Chancellor, through the Northern Ireland Court Service. In practice this means the Office is situated independently from the Court Service estate which provides a necessary and appropriate degree of anonymity in order to allow the Ombudsman to see complainants or other persons should he consider this is necessary as part of his complaints investigation. The Ombudsman and his Office also have a separate financial budget which is managed by the Northern Ireland Court Service and his role is supported by dedicated staffing provision located at the Office.
The Ombudsman’s remit is to investigate complaints, where maladministration or unfairness is alleged to have occurred during the judicial appointments process by the Northern Ireland Judicial Appointments Commission or Committees of the Commission, the Northern Ireland Court Service or the Lord Chancellor. The appointments to listed judicial offices covered by the Commission are contained in Schedule 1 to the Justice (Northern Ireland) Act 2002 (see Appendix 2).
The Ombudsman does not investigate complaints relating to judicial conduct and these are dealt with by the Lord Chief Justice of Northern Ireland. This difference with the framework as it exists in England and Wales occurs because complaints relating to judicial conduct were identified as a distinct issue in the review of criminal justice, and the current process was formally legislated for in the Justice (Northern Ireland) Act 2002. By contrast, the statutory provision for investigating complaints relating to judicial conduct in England and Wales was established within the Constitutional Reform Act 2005 and included within the remit of the Ombudsman for that jurisdiction.
The Northern Ireland Ombudsman can also be appointed on a temporary basis by the Lord Chancellor in order to adjudicate on both appointment and conduct complaints in England and Wales when the Ombudsman for that jurisdiction is not able to do so. I was not appointed as Temporary Ombudsman for England and Wales during the past year. I have dealt with three such cases since my appointment in September 2006.
A Memorandum of Understanding has been agreed between the Ombudsman, and the Northern Ireland Judicial Appointments Commission. A similar document has been agreed with the Northern Ireland Court Service.
The legislation defines the Ombudsman’s remit as covering “Commission complaints” and “Departmental complaints”. A “Commission complaint” is one of maladministration by the Judicial Appointments Commission or a committee of the Commission in the process for judicial appointments. A “Departmental complaint” is one of maladministration by the Lord Chancellor or the Northern Ireland Court Service in connection with a recommendation for, or appointment to a listed judicial office.
The legislation defines a “qualifying complainant,” as one “...who claims to have been adversely affected, as an applicant for selection or as a person selected…by the maladministration complained of”.
Complainants should have exhausted the complaints processes within the Commission (Commission complaint) or the Northern Ireland Court Service (Departmental complaint), before bringing a complaint to the Ombudsman. Ordinarily such a complaint should be made to the Ombudsman not more than 28 days after a complainant is notified of the decision of Commission or Lord Chancellor (in the case of the Court Service).
Following the complaint investigation, the Ombudsman will report his findings to the complainant, the Lord Chancellor and the appropriate organisation complained of. The Ombudsman must state whether or not the complaint is upheld and if so whether in whole or part. If a complaint is upheld he will recommend what action should be taken as a result of the complaint. Any recommendation for payment of compensation will only relate to loss by a complainant as a result of maladministration and not as a result of failure to be appointed to judicial office. Where the complaint has not been upheld, the Ombudsman may also make recommendations for consideration by the body complained of. The report of each complaint will be sent to the Lord Chancellor irrespective of whether it is a Commission or Departmental complaint and to the complainant.
The legislation requires the Ombudsman to submit a draft report to the Lord Chancellor and if the complaint was a Commission complaint, to the Commission. In finalising his report the Ombudsman must have regard to any proposal by the Lord Chancellor or the Commission for changes in the draft report and must also include in his report a statement about any changes which are not given effect to.
Sir John Brigstocke KCB, was appointed as the first Judicial Appointments and Conduct Ombudsman for England and Wales in April 2006. He investigates complaints about the judicial appointments process and the handling of matters involving judicial discipline or conduct. His Office was established under the provisions of the Constitutional Reform Act 2005.
The Judiciary and Courts (Scotland) Act 2008 provides for the Judicial Appointments Board for Scotland to investigate any complaints of maladministration internally and subsequently for the Scottish Public Services Ombudsman to act as the external reviewer for any further complaints.
The Northern Ireland Judicial Appointments Commission was established in June 2005 under the provisions of the Justice (Northern Ireland) Acts 2002 and 2004. It is an independent body with a specific remit to administer the selection processes for judicial appointments. In its Corporate Plan for 2006 – 2009, the Commission states: “Our aim is to produce a judiciary that is reflective of our society and that is the best that it can be”.
Since 1973 the Lord Chancellor had been responsible for directly appointing or advising on the majority of judicial appointments in Northern Ireland. Until the inception of the Judicial Appointments Commission he was supported administratively by the Northern Ireland Court Service in the discharge of this duty The recommendations made following the review of criminal justice 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”.
A number of the recommendations made within the review of criminal justice were given legislative effect in the Justice (Northern Ireland) Act 2002 including the establishment of the Commission. The continued suspension of the Assembly at that time led to the Justice (Northern Ireland) Act 2004 which enabled the Commission to be established in advance of any arrangements proposed for the devolution of justice. The Commission is an executive Non-Departmental Public Body which has responsibility for ensuring that its statutory purposes are being met and that the use of resources by it as a public body, are appropriate and effective. The Commission is funded through its sponsor department, which is the Northern Ireland Court Service.
The Commission has a membership of thirteen Commissioners, is chaired by the Lord Chief Justice of Northern Ireland and also includes five judicial members who are in turn nominated by the Lord Chief Justice. They are a Lord Justice of Appeal, a High Court judge, a County Court judge, a District Judge (Magistrates’ Court) and a Lay Magistrate. There are also two Commissioners with legal professional backgrounds, (a barrister and solicitor) who were nominated by the General Council of the Bar of Northern Ireland and the Law Society of Northern Ireland respectively. There are five non legally qualified Commissioners who were appointed following a process of open advertisement and selection. All Commissioners (with the exception of the Chairman) were appointed for an initial period of three years and some changes in the composition of the Commission have occurred. The Commission is supported in its work by a secretariat, which is headed by a Chief Executive.
The Commission has defined its key statutory duties in the Corporate Plan 2009 - 11 as being to:
The Commission is responsible for making recommendations to the Lord Chancellor of those applicants deemed suitable for appointment to the range of judicial offices that are listed in Appendix 2 to this report.
The procedures for all appointments comprise advertisements, self-assessment application forms, supporting documentation from consultees and interviews. Separate selection panels comprising a mixture of legal, judicial and non legally qualified Commissioners are constituted for the purposes of short listing applicants and then conducting interviews.
Since its inception in June 2005, the Commission has recommended a number of applicants for various judicial appointments. Re-appointments have also been recommended by the Commission in those instances where existing office holders’ terms are due to expire.
The Commission has a statutory duty to make arrangements for handling complaints from an applicant for appointment who is dissatisfied with some part of the process. The legislation defines the period during which complaints should be made to the Commission as being not more than 28 days after the matter complained of.
Appeals in relation to decisions not to short list for reasons of eligibility or otherwise and complaints are dealt with by panels specially constituted for each appointment scheme. This ensures a membership of Commissioners which differs from the short listing or interview panels. In circumstances when the Commission’s internal process has been exhausted and an applicant for judicial appointment still remains dissatisfied, a complaint can be made to the Ombudsman.
The Judicial Appointments Commission also includes an information leaflet on the role of the Ombudsman (which has been prepared and published by my Office) amongst the application papers that are issued to candidates for judicial office.
The Judicial Appointments Commission for England and Wales (JAC) was established on 3 April 2006 by the Constitutional Reform Act 2005. The JAC is an independent non departmental public body sponsored by the Ministry of Justice. The JAC comprises fifteen Commissioners of whom twelve, including the chairman, (who must be a non legally qualified member), are appointed following an openly advertised recruitment process. The remaining three Commissioners with judicial backgrounds are nominated by the Judges’ Council. In addition to the chairman the current JAC membership includes five judicial members, two professional lawyers, five non legally qualified members, one tribunal member and one lay justice.
The JAC selects judges and tribunal members (both legal and non legal) on merit through fair and open competition. The judicial posts in the JAC’s remit are listed in Schedule 14 of the Constitutional Reform Act 2005.
The JAC is statutorily required to investigate any complaints arising from the judicial appointments process. If the applicant remains dissatisfied a complaint can then be made to the Judicial Appointments and Conduct Ombudsman.
In Scotland, recommendations for judicial appointments are made by the Judicial Appointments Board which was established on a non statutory basis in June 2002. The Board is now provided for on a statutory basis by the Judiciary and Courts (Scotland) Act 2008. The Board comprises ten members with an even balance between non legally qualified and legal members and with a non legally qualified chair. The judicial members of the Board are appointed by the Lord President and the legal and lay members are appointed by the Ministers.
The remit of the Scottish Board differs from the Appointments Commissions for both Northern Ireland and England and Wales in that it covers appointments such as Sheriff Principal, Sheriff, Temporary Sheriff, Part-time Sheriff and Senator in the College of Justice. Another important difference with both Judicial Appointments Commissions is that tribunal jurisdictions are not covered by the Board. The appointment processes employed by the Board are similar to those in England & Wales and Northern Ireland. Applicants complete self assessment application forms, supply details of referees and following short listing processes, interviews are conducted and the Board makes its recommendations to the First Minister. A personalised feedback process is also available to unsuccessful candidates.
The Judiciary and Courts (Scotland) Act 2008 introduced provisions for dealing with complaints from individuals who are dissatisfied with the manner in which the Board has carried out its functions in relation to that individual. Scotland does not have a Judicial Appointments Ombudsman but the Act also makes provision for the Board’s handling of the complaint to be referred to the Scottish Public Services Ombudsman if necessary.
This chapter summarises my findings in respect of a specific complaint incorporating a number of issues which arose in relation to an application for appointment to a judicial competition during the year covered by this report.
The judicial post was advertised by the Commission and applications were sought before a specific closing date. The Commission (in keeping with its usual practice) constituted a Selection Committee. The shortlisting stage was completed and consultee comments were also sought. As part of the interviewing stage each candidate was required to prepare for the same case study exercise as well as respond to a number of standard questions.
Following these interviews the Selection Committee decided that it was necessary to introduce a further stage into the recruitment process. The additional assessment would entail two examples of written work as well as a further interview. It was at this point that the complainant first expressed concerns about the selection process. The complainant contended that the requirement for two additional examples of written work was unfair and also suggested that the Selection Committee should recuse itself at this point so that a new selection process could be initiated.
After the second round of interviews the Selection Committee decided to recommend a candidate for appointment. The complainant complained in writing to the Commission and following this correspondence a Complaints Committee (consisting of different Commissioners than those who were members of the Selection Committee) was established.
The statutory framework governing my remit does not allow me to provide information to any third party about the details of any complaints received by me or indeed to give any indication whether or not a complaint had been made. I did not consider that I was able to provide any information in response to requests for information which were received in connection with this complaint.
The terms of reference for the investigation into this complaint was defined in the following terms: “to consider the complaints which have been made in relation to the roles of the Judicial Appointments Commission’s Selection Committee and Complaints Committee with regards to a recent competition process and to make any findings and recommendations as appropriate .” The issues raised have been summarised as follows:
I noted that there was a considerable amount of documentation already in existence as part of the selection process. I studied this material before determining what further investigations were necessary. I subsequently met with the complainant; members of the Selection Committee and the Complaints Committee as part of the investigation into this complaint.
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. 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.
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. 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.
Although the Selection Committee ultimately decided not to utilise any further written tests or seek further materials from candidates, there was no personalised response to the complainant on this point. The complainant stated that the Selection Committee had implicitly accepted the proposal was unfair although this perception was not shared by members of the Selection Committee or Complaints Committee.
I did not uphold any aspect of the complaints which were made in relation to the format of the second interview.
I studied the material that was provided to candidates in relation to this competition (Applicant Information Booklet) and also the documentation used by Selection Committee members which set out the criteria used as part of this particular competition. I noted that there were explicit criteria which were established at the outset for this role, that individual competences were identified and weighted during the discussions held by Selection Committee members. The second stage of the assessment was consistent with previous stages in that it was seeking to test competences and skills that had been identified previously. I did not consider that there was any evidence to suggest that the criteria had not been established before the candidates were known.
For these reasons I did not uphold this aspect of the complaint. Following the first stage interviews the complainant asked that the Selection Committee recuse itself from the recruitment process and that a new competition should be initiated. In my meeting with the Selection Committee, I was informed that the members had considered this request but had decided not to accede to it because they had not identified any actual or perceived conflict of interest and had also decided not to pursue the request for written assessments. Whilst it is incumbent upon the Selection Committee to act and be seen to act in a fair manner and to carefully consider any suggestion that it should recuse itself, this is not a response that can or should be adopted on every occasion that it is raised. In the particular circumstances, and at this stage of the competition, there were no compelling reasons why this should have been considered as an appropriate course of action.
I did not uphold this aspect of the complaint.
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.
The complainant stated that awareness of the complaints process at the outset, would have assisted in making the complaint. I considered the material (such as the Application Information Booklet) which was available to candidates who had applied for this competition. I noted that contained within it are explicit references to the role of the Commission in investigating complaints and also to the role of my Office. I made the assumption that all candidates would have carefully examined all the documentation which is sent to them by the Commission as part of the pre application stage.
For these reasons I did not consider that this aspect of the complaint should be upheld.
The complainant had stated that the Selection Committee had taken differing career patterns of candidates into account in a manner which had been unfair to assessment of the candidates. In my discussion with members of the Selection Committee it was made clear that this was not a reference to making an assessment of preferred career paths for this particular role. I did not consider that this aspect of the complaint should be upheld. The complainant had stated that the Complaints Committee did not subject the actions and decisions of the Selection Committee to rigorous analysis. I considered the material which details an ongoing pattern of engagement with the complainant. The Committee had given considerable thought to how it should approach its task and there was an underlying assumption amongst its members that the complainant should be given the maximum amount of material that was available. Against this background context of an unceasing supply of material to the complainant and continuous engagement, I did not agree with any conclusion that the Complaints Committee was not rigorous in its approach.
For the reasons set out above I did not uphold this aspect of the complaint.
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.
In addition to my report to the Commission which dealt with matters relating to the complaint dealt with in Chapter 3, I also made a number of recommendations to the Commission. I have also incorporated a number of issues that were raised during discussions with stakeholders.
I recommended to the Commission that it gives further consideration to:
I also recommended to the Commission that it gives further consideration to:
I recommended to the Commission that it also gives consideration to:
These recommendations are designed to assist the commission in scrutinising the effectiveness of its procedures.
Karamjit Singh CBE was appointed as the Judicial Appointments Ombudsman for Northern Ireland on 25 September 2006.
He is also the Social Fund Commissioner for Great Britain and Northern Ireland with effect from 1st December 2009. Since 2005 he has also been a member of the independent Queens Counsel Selection Panel for England and Wales.
The early stages of his career covered academia, casework in the voluntary sector, local government and the Commission for Racial Equality.
During the past two decades his public appointments include considering complaints against the police; taking parole decisions; investigating suspected miscarriages of justice; training of the judiciary; selection of senior civil servants; regulation of financial services; chairing an NHS mental health Trust; regulation of donations to political parties and performance standards in electoral administration and membership of employment tribunals.
His voluntary interests have included being a Trustee of the Citizenship Foundation, the Lloyds TSB Foundation, the British Lung Foundation and organising free medical camps in India.
He was awarded the CBE in 1999 for services to the administration of justice.
In the period 1 April 2009 - 31 March 2010 the expenditure of the Office of the Northern Ireland Judicial Appointments Ombudsman was £ 95,899 made up as follows:
| Salaries | £ 44,140 | |
| Ombudsman | £ 11,951 | |
| Secretariat | £ 32,159 | |
| Travel and subsistence | £ 3, 095 | |
| Design & Printing | £ 4,026 | |
| Office running costs | £ 44,638 | |
| Rent and Rates | £ 22,072 | |
| Service Charges - rented building | £ 6,495 | |
| Managed Services | £ 5,755 | |
| Other Costs: e.g. Electricity | £10,316 | |
| Telephone | ||
| Office Machinery Leases | ||
| Office supplies | ||
| Professional subscriptions | ||
| Postage | ||
| Maintenance |
Telephone: 028 9072 8930
Fax: 028 9072 8936
Write to:
Northern Ireland Judicial Appointments Ombudsman
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If you would like additional copies of this Annual Report please contact the Office of the Northern Ireland Judicial Appointments Ombudsman.
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