“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.