“the non-ministerial department is the best option”

Lord Chief Justice Sir Brian Kerr was appearing in front of the sub-committee of the NI Executive tasked with assessing when to request the devolution of policing and justice. Interestingly, as noted by Mark Devenport and covered in the subsequent reports, he does not necessarily agree with the current proposals which would devolve the Court Service into an executive agency of the administration, within a Department of Justice as in England and Wales, preferring instead a more independent judiciary under a management board on which such a department would simply be represented – as in the Republic of Ireland and as is apparently planned for Scotland. Lord Chief Justice Kerr’s opening statement is available hereFrom the statement

As a result of my discussions and reading about this issue, I hold the view that the most appropriate arrangement for the Court Service would be a body at arms length from the Government under a Board chaired by the Lord Chief Justice – in other words a nonministerial department. I do not suggest that there are no other possible models. Indeed, you will have seen from the papers that I sent you that different approaches have been taken in some jurisdictions, but I have concluded that the non-ministerial department is the best option for reasons that I hope to explain.

This is a model that has been, as I have said, adopted in many other jurisdictions in the Commonwealth; it is the model that is planned for Scotland; and that has been in place for
some years in the Republic of Ireland. A 2006 report by the Canadian Judicial Council recommended precisely the type of model that I propose to this committee. I believe that it provides the maximum safeguard for judicial independence, but also will provide administrative efficiency. Now, I obviously recognise that if there is to be such a non-ministerial department, legislation will be required. And I appreciate that it may not be feasible to introduce such legislation before devolution. That, if I may say so, makes the deliberations of this committee all the more important because it is my hope that the legislation to provide for what I firmly believe is the optimal arrangement will not be long delayed following devolution.

That legislation should enshrine the independence of the Board. But it should also be recognised – in the statute, if necessary, that the Board would not deal with policy – as I have said, that is a matter for Government. I also understand that there must be accountability to the Executive for the money provided by the legislature to the Court Service. I freely accept that it should be incumbent on the Board to produce a strategic plan with key objectives, outputs and strategies including on the use of resources. I also accept that this plan should be submitted to the Minister for approval. I anticipate that it would be a requirement that the Board would report to the Minister annually and would provide information on performance of functions and such other information as the Minister may request. One would also expect that staff numbers and different grades would be a matter for the Board to agree with the Minister as well as the budget. Finally, one would also anticipate that the Ministry of Justice would be represented on the Board.

And from the notes to that statement

Notes for Editors

1. David Hanson MP is the Minister of State at the UK Ministry of Justice. He was appointed to the Ministry of Justice in May 2007 and has responsibility for the courts in Northern Ireland. He also has ministerial responsibility for prisons and penal policy in England and Wales.

  • Nevin

    From the Kerr link, a quote from the aptly named Sir Igor Judge:

    “The independence of the judiciary is something which is
    precious to every single member of the community. You must
    be able to go into court and know that the person sitting in
    judgment is neutral – not on one side or the other – coldly
    applying the law that applies to your case.
    So although people
    sometimes think that when we defend judicial independence we
    are simply defending our own corner . . . that it not the case.
    The issues which arise here (therefore) are of great importance
    to every member of the public.”

    Presumably this independence will also apply to judges who have a shareholding in a company that is closely linked to either a plaintiff or a defendant. I’m told that such shareholdings can be very difficult to identify.

  • ulsterfan

    Surprised there is so little interest in this topic even though it is so important.
    Whatever the outcome may be the Judiciary must be independent from political interference.
    Some years ago in the Haughey era similar arrangements were being discussed and the opposition introduced a clause to make it a criminal offence to influence the courts in this manner.
    I have more faith in the law to protect my rights than entrust them to politicians.