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
j
independence of the judiciary. There
j
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
overleaf
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