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GAZETTE
JANUARY/FEBRUARY 1978
appropriate accommodation in which to carry out the
trial of the cases which come before it.
The corresponding duty undo- the Constitution which
falls upon the Legislature and the Executive cannot
therefore be passive only. It is not sufficient as indeed in
general they have always done that the Legislature and
the Executive should abstain from seeking to interfere
with Judges in the decision at which they will arrive. They
have, it seems to me,
an active constitutional duty in
regard to the separation of the powers created by the
Constitution.
That active duty is, in the case of the
Legislature by the Acts of Parliament which it passes and
in the case of the Executive by the decisions it makes and
the moneys it makes available:—
(1)To provide a sufficient number of Judges appropriate
to each of the Courts for the body of litigation which at
any time is coming before those Courts;
(2) To provide both at present and into the future at
any given time a sufficient number of appropriately
trained and qualified persons to staff the Courts; and
(3) To provide sufficient appropriate and adequate
Court accommodation at every level. In short, it seems to
me, that there is a
clear constitutional duty imposed upon
the Legislature and the Executive adequately and
properly at all times to service the Courts.
The successive
Executives have, in my opinion, failed and continue to fail to
provide that active obligation towards the independence
of the Judiciary.
Provision of adequate Courthouses essential.
The members of this Society are now, thanks to the
energy and initiative of the Incorporated Law Society,
being educated in physical surroundings which are
functionally excellent and pleasingly elegant. They are, of
course, being trained to be practising lawyers. When they
enter practice their almost universal experience will be
that the first tribunal in which they will be called upon to
act as an advocate, will be the District Court. Certainly
for those outside Dublin and, to a large extent, even for
those practising inside Dublin as well, they will move from
these spacious and well laid-out halls to practise, for the
first time, their art of advocacy which they have been
taught, in conditions which in some instances are of
almost indescribable inadequacy and of total lack of
elegance. It is difficult to understand the failure to
provide, or have provided, appropriate Court
accommodation throughout the country and, in
particular, in the District Courts. It cannot, it seems to
me, arise from the cost of so doing. The modern Court
does not require to be the ornate stone built building
which the Victorian concept of the dignity of justice
required. The dignity of justice arises not from the fabric
of the building but from its capacity with courtesy and
calm to accommodate the people who have resorted to it
and, of course, from the dignity and integrity of the
person who sits in it as a Judge. I would venture to say
that a very great number of totally appropriate and
adequate courthouses for the sitting of Courts, both in
Dublin and in the country, could be provided with the
equivalent of the total State contribution to one large
luxury hotel. Apart from the inadequacy of the actual
courthouses which are in many places at present provided
there are too few courthouses provided at every level from
the High Court to the District Court inclusive. We
appreciate that there is some awareness of this and that
steps have been taken particularly with regard to the Four
Courts which may ease it in the future. Practitioners
amongst the audience must be aware of the very
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significant arrears in relation to both criminal and civil
business which at present face all the Courts. These are
not, I think, due to any refusal or failure on the part of the
Judiciary to work with sufficient energy and for sufficient
periods. Rather they are due to the insufficient number of
Judges in various areas which itself flows, probably, from
the fact that even if such Judges were appointed, there are
not sufficient Courts in which they can sit.
Extension of adequate staff essential
Furthermore, and I speak here mostly from my own
experience in the High Court, the recent explosion in the
amount and diversity of litigation before the Courts has
not been matched by a sufficient awareness of the
necessity for extending the staff attached. Really efficient,
highly qualified Court staff with time properly and
adequately to carry out its duties is an absolutely vital
element in the Administration of Justice. Speaking for
myself I unreservedly say that the staff attached to the
Courts is one of the most dedicated, efficient and highly
qualified to be found in any part of the public service.
They are, however at present, in numbers grossly
inadequate.
Judicial responsibility for control of staff.
I do not believe that this inadequacy in Court
accommodation with its consequential inadequacy in the
numbers of the Judiciary and the inadequacy in the
number of Court staff flows from any desire on the part
of either the Legislature or the Executive (and I am
speaking of successive Legislatures and successive
Executives) to denigrate the role of the Judiciary or the
status of the Courts. Rather, I believe that it flows from a
failure on the part of both these constitutional organs to
appreciate the requirements of the Courts, the way in
which they work and the importance of the various
elements, other than the mere members of the Judiciary,
in the carrying out of the duties of the Courts. That lack
of awareness itself arises to a very large extent from the
failure of the Oireachtas to provide by legislation for the
proper participation by the Judiciary itself,
who are after
all the persons charged with the constitutional duty of
administering the law and most likely to know precisely
what is required for that purpose in the decision making
processes concerning the servicing of the Courts.
The absence of these statutory structures has, over
almost the entire period since the institution of this State,
led to a running, if mute, battle between the Judiciary and
the Executive and Legislature with regard to the staffing
and building of Courts. To it and to the problems that
arise from it there is, in my view, only one satisfactory
and final solution. To a very large extent and subject only
to the qualifications necessary for the protection of public
expenditure,
the administration of the Courts, structuring,
recruitment, training and organisation of their staffs and
the provision of the appropriate accommodation for them
should be under the control of the Judiciary.
In a word
the Courts require, to a very large extent, to become an
independent republic. I am conscious of the possible
accusation that speaking as a member of the Judiciary I
am seeking merely to increase its influence and power.
A comparison however between the structure affecting
the administration of the Courts by the Judiciary and that
of any other public or even private organisation would, I
think, make this charge unfounded. The Chief Justice, a
person who at any time holds the responsibilities of my
office, the President of the Circuit Court and the
President of the District Court have, by Statute, various