The Gazette 1996

GAZETTE

JULY 1996

The National Archives

by Kieran Conway* With the Government appointing an additional 17 judges without a murmur of dissent from the opposition or elsewhere, the argument that the system needs more, rather than harder-working, judges seems Anally to have prevailed. There has been no reference this time around to the long-standing proposal, repeated as recently as 1990 in the Fair Trade Commission report on the legal profession, that the Courts instead sit for longer hours and have more sitting days. It wasn't always so apparently easy to secure an extra judgeship, as papers in the National Archives show. In 1953, quite a debate took place - won, in that case, by the judiciary which got its increase. But its champion, the then Minister for Justice, Gerald Boland, had tofight for it, in the teeth of fierce resistance from the Minister for Finance, Sean McEntee. On 7 May 1953, the then President of the High Court, Cahir Davitt, wrote to the Minister for Justice. He said he was "gravely concerned about the congestion" in the Courts and that the i "delays involved have been the subject of much complaint", from, amongst others, the legal profession who had, he notes, made their own representations to ! the Minister. He went on to "assume therefore that you are fully informed as to the facts, and that there is no need for me to refer to anyfigures or to describe the situation in any greater detail than I have done . . . the volume of legal business . . . has now become more than the Judges can deal with . . . and that the only effective remedy... is an increase in the number of judges of the High Court." In an extraordinaryfinal paragraph Justice Davitt concluded: "I do not want to trouble you with anything in the nature of an argument in favour of the

Boland was playing for time - while displaying his openmindedness. He had no difficulty with the establishment of, for instance, a committee of inquiry but in the meantime there was business to be done. There was "the immediate problem" and, to this, there was no solution other than the appointment of an additional judge. Lesser measures were mere "palliatives", for the "root of the trouble is an insufficiency of judges." As for quibbling over the additional cost, as he knew McEntee was about to do: "The notion that the Government OUGHT tofind some £120,000,000 for all sorts of miscellaneous purposes, many of which would, by common consent, be accorded a lower priority than the administration of justice, but that it OUGHT NOT tofind an extra £4,000 or so a year to cover the salary and expenses of an extra judge and his crier so that litigants in one of the two highest courts in the land may be spared the hardship of waiting interminably to have their cases heard is surely too shocking to be allowed to prevail." But it is Boland's robust defence of the working hours and long vacation that is extraordinary, particularly, as we shall Í see, given his view of just a couple of ! weeks earlier. "Incidentally", the defence began, "the existing arrangements of the law with respect to practice and procedure are the subject of a lot of ignorant criticism of I which the judges are too often the I victims. The common belief (amounting j in some quarters to an article of faith) ! that a judge of the High Court has an easy day and short hours is quite erroneous. It is true that the normal sittings are from 11 a.m. to 4 p.m . . . But a judge's work does not end when he leaves the Bench." Boland then spent some paragraphs outlining the out-of-court workload of the judges before moving on to defend the long vacation in similar tone.

Kieran Conway

proposed increase in the number of judges. It would involve a considerable amount of my time and for all I know may be quite unnecessary. If, however, there is any matter on which you would care to have my assistance or on which ; you would like to have my views I shall, of course, be very glad to meet your wishes." The matter came before the Cabinet shortly afterwards together with a lengthy memorandum from the Minister j for Justice and a shorter one from Finance. After parading the congestion figures, both past and projected, Boland came right to the heart of the issue: "This prognosis (which could hardly be more j unfavourable) is based on the assumption that there is not going to be any revolutionary change in the immediate future in the practice and procedure of the High Court and on the belief that any other assumption would be quite unrealistic." I For, there could be no change "against I the wishes of the judges and the legal | profession", except "on the ; recommendation of some competent I authority which could show that it had gone into every aspect of the question and had taken evidence as only required to be published to command general assent."

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