The Gazette 1995

GAZETTE

R E V I E WIS

JANUARY/FEBRUARY 1995

The Administration of Justice

By the Rt Hon The Lord Mackay of

Clashfern. The Hamlyn Lectures,

Stevens & Sons/Sweet & Maxwell,

xii + 91 pp, 1994. Hardback, £16.95

sterling, paperback, £6.95 sterling.

As I write this notice, I have

newspaper extracts from

The Times

for 1989 before me. I sensed at the

time that the reportage was worth

retaining. Lord Lane, then Lord Chief

Justice of England and Wales, in

The

Times

of February 16, 1989 was

reporting as stating that Lord

Chancellor Mackay's plan for

overhauling the legal profession as set

out in his Green Paper was "one of the

most sinister documents ever to

emanate from Government"; that the

independence .of both lawyers and

judiciary was threatened and that

independence was "the last bastion,

between the citizen on the one hand

and tyranny on the other".

One of Lord Mackay's "sinister"

reforms was to end the barristers'

monopoly of advocacy rights in the

higher courts. Readers will remember

that the barristers' monopoly in

advocacy was removed in Ireland in

1971. The UK Bar retained Saatchi

and Saatchi to assist their public

relations team in their opposition to

the proposal and sought to raise £lm

from its members to cover the

campaign. In effect, the Bar lost.

Lord Mackay, the only son of a

railway signalman, a man of moral,

legal and religious seriousness, the

first member of the Scottish Bar to sit

on the Woolsack, a judicial

"outsider", a Christian who was

excommunicated from the Scottish

Free Presbyterian Church for having

attended Requiem Mass for two

former judicial colleagues, held firm

on most of his reforms. Accordingly,

it was with a sense of anticipation that

I looked forward to reading

The

Administration of Justice

based on the

forty-fifth series of the Hamlyn

Lectures. In four chapters, Lord

Mackay examines four aspects

associated with the administration of

justice in the United Kingdom: the

judges, the courts, legal services and

alternative dispute resolution.

Lord Mackay is a pragmatist par

excellence. This sense of pragmatism

permeates his lecture

series.As

readers

know, the Lord Chancellor is

responsible for the administration of

justice in the United Kingdom, and he

is its most senior judge. The Lord

Chancellor is President of the

Supreme Court of England and Wales,

has responsibility for the County

Court, is entitled to preside if he sits

on appeals in the House of Lords, is

Speaker of the House of Lords and a

senior member of the UK Cabinet.

Remember Ireland was the "first

adventure of the common law"; we

share the common law inheritance, we

cannot reverse history; accordingly,

we should listen when a distinguished

lawyer from our nearest neighbour

speaks on matters of common concern

to us.

What does the Lord Chancellor say?

This is a subjective and selective

consideration: good advocates can

make bad judges and conversely; gifts

bestowed on human beings are in

different combinations and with

different emphases; there is merit in

an open system for the appointment of

judges; the independence of the

judiciary is rightly regarded as a key

principle of the constitution; the

solicitors' branch of the profession

operates "under a fairly elaborate

framework of statutory provisions"

while the Bar operates with "very

little in the way of statutory

framework"; in due course, solicitors

will become eligible to take silk as

Queen's Counsel; and the

development of alternative dispute

resolution should be explored in the

context of reducing the delay, cost and

complexity of going to law.

In his lectures, Lord Mackay

demonstrates no pretensions; no

grandiose theoretical ideas about the

administration of justice are expressed

by him. His intention - in the spirit of

the lecture series - was to add a little

of the knowledge of "the so-called

common people" about aspects of the

administration of justice. He has

succeeded admirably.

Dr Eamonn G Hall

Contempt of Court - A Law

Reform Commission Report

September 1994,81pp, softback, £10.

The Court rulings and the prosecution

of the investigative Journalist

Susan

O'Keeffe

arising out of the Beef

Tribunal has made "Contempt of

Court" a familiar term in every

household in the land.

Deemed Contempt

In relation to Tribunal enquiries such

as the Beef Tribunal the

Commissioners recommend:-

There should be no offence of

contempt in the face of a Tribunal

Enquiry, akin to contempt

in facie

curiae.

Certification proceedings such as

Section 10 (5) of the Companies Act

1990 should not be entertained in

the future in bodies exercising

quasi

judicial functions.

If "deemed contempt" is not repealed,

amending legislation should make it