Rewarding Merit in Judicial Appointments?: A research project undertaken by the School of Law, Queen’s University Belfast for the Northern Ireland Judicial Appointments Commission

This research involved carrying out an online survey using a number of vignettes/scenarios to explore understandings and attitudes to judicial appointments. This sort of survey is relatively novel in this context and provided a useful way of understanding how a range of factors such as merit and seniority, career paths and connections, as well as gender and visibility, are perceived as operating within the appointments system. The research also involved a series of focus group interviews with a number of individuals with various professional backgrounds and at different levels of seniority. These, and a limited number of individual interviews, afforded an opportunity to explore more closely some of the themes arising from the scenarios as well as a chance to look in some depth at some of the views and concerns of a range of members of the legal professions.

Building upon the previous research project, this work was less concerned with revisiting earlier themes and more interested in exploring how the idea of “merit” as a governing factor in judicial appointment is seen as working in practice, and whether it is perceived as being most likely to be found within particular career profiles. We also investigated issues such as the possible development of formal and informal pathways to a judicial career and practical problems such as how an applicant might become known to the senior judiciary, and the importance of this. Overall our interest was primarily in developing an understanding of how gender is perceived to operate in the appointments process and how any barriers to recruiting women, particularly to the senior judiciary, could be further broken down.

Reasoning Rights: Comparative judicial engagement

This edited book is about comparative reasoning in human rights cases, exploring the questions: How is it that notionally universal norms are reasoned by courts in such dramatically different ways? What is the shape of this reasoning? What techniques are common across the transnational jurisprudence? What techniques are diverse? With contributions by a team of world-leading human rights scholars, the book moves beyond simply addressing the institutional questions concerning courts and human rights, which too often dominate discussions of this kind. Instead, it seeks a deeper examination of the similarities and divergence in the content of reasons being developed by different courts when addressing comparable human rights questions. These differences, while partly influenced by institutional issues, cannot be attributable to them alone. The book explores the diverse and rich underlying spectrum of human rights reasoning, as a distinctive and particular form of legal reasoning, evident in the case studies across the selected jurisdictions. It is a fascinating study for all those interested in human rights law and legal reasoning.

The Pluralism of Human Rights Adjudication

This chapter considers judicial reasoning in ‘human rights’ cases. Are there techniques that courts share, or are different techniques adopted, to decide how human rights, in this broader sense, are protected? The chapter aims to adopt a comparative approach to the examination of this reasoning, through a detailed examination of similar human rights issues in a range of jurisdictions. The aim of the chapter is to examine the similarities and divergences in the reasoning developed by courts when addressing comparable human rights questions. The chapter shows that human rights reasoning involves distinctive and particular forms of legal reasoning, but that its form and content differ significantly
from jurisdiction to jurisdiction, and over time within jurisdictions. Building upon these findings, the chapter explores what these similarities and differences tell us about the nature, and the direction of travel, of human rights law which comprises notionally universal norms.

Finding Merit in Judicial Appointments: NIJAC and the Search for a New Judiciary in Northern Ireland

The post-Agreement constitutional architecture has produced a new legal space in Northern Ireland. While the court structure has largely endured in a recognisable format there are perhaps now new expectations of how it will function in the next stage of Northern Ireland’s transition from a society in conflict. These expectations come into focus around the nature and role of the judiciary that is to oversee this new legal space. At the same time there are other, wider forces pressing upon the judiciary across the United Kingdom and these are being acted out in the various appointment commissions and regimes that have been created to modernise the judiciary. This all contributes to establishing a dynamic context for considering whether and/or how the judiciary in Northern Ireland is changing, and the forces that may be conditioning any change. This chapter looks at some of the expectations that might arise for the judiciary. It focuses both on some ideas about what might be the role of a judge in a transitional context, and the debate about how judges generally should be appointed across the United Kingdom where the idea of “merit” emerges as governing concept. Next consideration is given to how this idea of merit plays out in the Northern Ireland context and, in particular, how it impacts on the appointment of women to senior judicial roles which has emerged as the central concern in the new dispensation. Here the chapter draws on two pieces of research: the first looking at the issues surrounding judicial appointments and attitudes towards seeking such posts in the Northern Ireland context, and a second project where the idea of “merit” as a governing factor in judicial appointment was further explored in focus groups and interviews. Finally the chapter looks ahead at the challenges around judicial appointment that remain and suggests that notion of ‘merit’ has not provided the robust foundation which its proponents imagined it would.

Judges, Conflict, and the Past

Drawing upon interviews with senior judicial figures in Northern Ireland, South Africa and elsewhere, this article considers the role of the judiciary in a political conflict.1 Using the socio-legal literature on judicial performance and audience as well as transitional justice, the article argues that judges in Northern Ireland ‘performed’ to a number of ‘imagined’ audiences including Parliament, ‘the public’ and their judicial peers - all of which it is argued shaped their view of the judicial role. In light of ongoing efforts to deal with the past in the jurisdiction, and the experiences of other transitional societies, the article argues that the judiciary can and should engage in a mature, reflexive and, where appropriate, self-critical examination of the good and bad of their own institutional history during the conflict. It also argues that such a review of judicial performance requires an external audience in order to encourage the judiciary to see truth beyond the limits of legalism.

Commentary on Burnet v. Chetwood (1721)

Chancery case concerning the publication of a translation of a work protected under the Statute of Anne 1710. The decision established that the reproduction of works in translation was not unlawful under the 1710 Act. The decision is also significant, however, in relation to the court's inherent jurisdiction concerning the publication of works on grounds of public policy.
Drawing upon material in the National Archives the commentary explores the background to, and substance of, the decision as well as its relationship with current judicial practices in refusing the court's protection to copyright protected materials on the grounds that the content of the work is, for example, obscene, sexually immoral, defamatory, blasphemous or irreligious.

Judicial Impartiality and Independence in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia-Herzegovina

The role of Constitutional Courts in deeply divided societies is complicated by the danger that the salient societal cleavages may influence judicial decision-making and, consequently, undermine judicial independence and impartiality. With reference to the decisions of the Constitutional Court of Bosnia-Herzegovina, this article investigates the influence of ethno-nationalism on judicial behaviour and the extent to which variation in judicial tenure amplifies or dampens that influence. Based on a statistical analysis of an original dataset of the Court’s decisions, we find that the judges do in fact divide predictably along ethno-national lines, at least in certain types of cases, and that these divisions cannot be reduced to a residual loyalty to their appointing political parties. Contrary to some theoretical expectations, however, we find that long-term tenure does little to dampen the influence of ethno-nationalism on judicial behaviour. Moreover, our findings suggest that the longer a judge serves on the Court the more ethno-national affiliation seems to influence her decision-making. We conclude by considering how alternative arrangements for the selection and tenure of judges might help to ameliorate this problem.