The Gazette 1993

GAZETTE

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Why the Courts Service Needs

an Executive Agency

MIWH

NOVEMBER 1993

We have referred before in these pages

to the neglect that has occurred over

the years in the courts service and the

urgent need, as we see it, for the

Government to take action to improve

the situation. Recently, at the initiative

of the then President of the Society,

Raymond Monahan

, the Society and

the Bar Council co-operated in the

preparation and submission of a joint

report on the courts service setting out

a clear analysis of present

shortcomings and making suggestions

as to how these should be addressed.

One suggestion made - and, in our

view, it is a key recommendation of

the submission - is that there is a need

to establish a unified courts service in

this country and set it up as an

Executive Agency of the Department

of Justice under a Director who would

be given responsibility for

administration and given the resources

to bring about improvements.

The concept of an Executive Agency

for the courts is not new. It was first

mooted almost 25 years ago in the

Devlin report but, like so much else in

that report, the idea was shelved, not

because of any inherent weakness in

the suggestion itself but, rather,

because of a general lack of political

commitment to Civil Service reform.

Meanwhile, our friends in Northern

Ireland and in England and Wales

have been busy reforming their court

structures. In Northern Ireland, the

courts service has become a unified

service and is established under a

Director who,

working very closely

with senior members of the judiciary,

has improved the efficiency of the

courts service to a very considerable

extent. In the recent past, the Lord

Chancellor of England has announced

that the English courts service -

which has been a unified service since

1972 - will be established as an

Executive Agency under a Director. In

making his announcement, the Lord

Chancellor had this to say.

"The conversion of the courts

service into an Agency, will not

affect the judiciary, either in its

independent role and functions or

in its relations with the

administration".

The Lord Chancellor said, of course,

that consultations with the judiciary

on the establishment of the Agency

would be carried out.

At a recent conference entitled

"Justice for All" staged by the Law

Society of Scotland, the Past-President

of the Society,

Brian Adair,

advocated

the creation of a judicial appointments

board one of the functions of which

would be to review the judges' role

with the objective of reducing their

administrative burdens so that they

would have more time to spend on

their judicial functions. One

contributor remarked that judges

should do what they do well - judging

- and leave administration to the

administrators and managers under

their direct supervision and guidance.

Since the publication of the

Society/Bar Council submission, the

President of the High Court has make

it clear that he would be personally

opposed to the establishment of the

courts in this country as an Executive

Agency on the grounds that it would

undermine the constitutional

independence of the judiciary.

In our view, it is, indeed, surprising -

not to mention disappointing - that

anybody should see a proposal to

improve the management of the courts

as undermining the constitutional

independence of the judiciary. It is

possible, of course, that there may be

some misunderstanding about what is

being suggested.

Responsibility for the administration

of the courts in this country lies with

the Minister for Justice and the day-

to-day management is carried out by

civil servants in the Department of

Justice. Each of the four court levels -

District, Circuit, High and Supreme -

is, in reality, a separate and distinct

entity; the clerical and administrative

staff - the court officials and

registrars - work with the judges

providing administrative backup and

support; there is no real mobility of

staff between any of the court levels.

Moreover, no one officer in any of the

courts has responsibility for the

overall efficiency of the service. A

unified courts service and the

Executive Agency concept would

address these shortcomings. In our

view, there is no reason why the quest

for improved administrative efficiency

should undermine, in any way, the

independence of the judiciary. There

is no conflict between them. The

management functions we are taking

about do not involve interfering with

the freedom of the President of the

High Court to allocate judges to cases

or to administer the lists as he sees fit.

We would have thought that the

judges themselves would see

advantage in having on their side a

senior official who would have a

direct link with the Minister and

whose task it would be, working in

co-operation with the judges, to put

forward proposals for change and to

seek to secure the best possible deal,

in terms of finance and other

resources, from the Minister and the

Department of Finance. That person

would also be responsible for the

development of a programme of

modernisation and refurbishment

of our courthouses and for speeding

up the computerisation of

the courts.

We would support the view of the

Law Society and the Bar Council that

there is a fundamental distinction

between the respective roles of

officials, who are civil servants, in the

administration of the courts service

and that of the judiciary whose task it

Continued

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