PRETTY well the strongest feature of the Irish system of government is respect for the independence of the judiciary. Irish history has nothing to show which is even remotely like the Roosevelt Court Tacking Scheme of the 1930s or the British Law Chancellor's letter leading to the resignation of the President of the Employment Appeal Tribunal in 1994.
It is well that this is so but this great respect for the independence of the judiciary has meant there is no agency capable of bringing about urgently needed change in the way the courts do their business, something which has not been substantially altered since 1924.
Leaving aside the local authorities, who own and (in some cases) maintain the courthouses, two bodies are at present responsible for the administration of the courts, namely the judges themselves and the Department of Justice.
The Department's courts division controls the finance, negotiating with the Department of Finance and drawing up the estimate for the courts, with the Secretary of the Department being the accounting officer.
It may be worth noting that in 1995 the courts estimate was £27 million, with the income arising from the courts being about £10 million (fees) plus £9 million (fines).
The Department is also responsible for promoting Bills in the Oireachtas dealing with matters like the number of judges, and for making statutory instruments, which regulate court circuits.
As to the staff of the courts, these are usually civil servants in respect of whom the Department exercises the personnel function. Notwithstanding this, the Department has always respected the autonomy of the courts and the distinctive position of their staff.
However, under the Denham group's proposals the staff would enjoy the independent status of "civil servants of the State".
The Chief Justice organises the list of cases to be heard in the Supreme Court, allocates judges to cases and also settles the courts' times and dates of sittings, including vacations. The presidents of the other courts exercise analogous functions for their courts.
Insofar as the operation of the status quo is concerned, this system has worked adequately rather like a semi detached marriage between two partners who have remained together for the sake of the children, with each side respecting the territory of the other.
However, when it comes to devising and executing improvements, the system has been less effective. On the one hand the judges have lacked the time, possibly the outlook and, above all, the back up staff to make reforms.
The Chief Justice, for example, has no staff apart from a single secretary and also, of course, has his work as a judge to do. And on the other side of the fence, the Department has been slow to introduce reforms because of the fear of anything which might even smack of interference with the judiciary's independence.
Thus, for instance, in service training for judges was slow in coming, with the first seminar taking place only in 1994.
The solution proposed by the Denham group to reconcile independence with the capacity for professional management and reform is straightforward, and none the worse for that.
It is to establish the courts as a "courts service" under the direction of a board, somewhat along the lines of a state sponsored body like RTE.
As proposed by Denham the board's members will be eight judges, a solicitor, a barrister, a civil servant from the Department, a representative of the courts staff plus only three persons representing users of the courts.
Its field of authority will include such key matters as court circuits (devised in the horse and buggy era); length of vacations (designed in the medieval period); hours of sitting; court accommodation, staffing and finance.
The report says emphatically that the functions of the service will not include the administration of justice; and that it will not be accountable for judicial decisions. Perhaps this is the reason nothing is said about the appointment or disciplining of judges.
As regards appointments, it was presumably thought impolitic to suggest any change to a system which had been established as recently as the Courts and Court Officers Act 1995.
But it is a fact that the main feature of this act is an advisory board which is far from having the power to select a judge. It merely nominates a list of seven (yes, the figure is as high as seven) nominations for a single judicial vacancy.
In making its selection, the government "shall firstly consider" the seven persons recommended by the commission.
This, in my opinion, is an extremely weak feature of the new scheme of appointment, which, it was said, was designed to reduce significantly government influence in judicial appointments. If and when the Denham report is implemented, the arrangements contained in the 1995 Act really ought to be reviewed.
As regards the disciplining of judges, for judges like the rest of us can err, the present sanction is mainly the draconian one of dismissal and then only upon resolutions passed by both Houses of the Oireachtas. No such resolution has ever reached the stage of being debated.
In contrast, many US states provide for the judges to discipline themselves, which at least means that, in the rare case when it is necessary, there is a possibility that appropriate action will be taken.
In an age of accountability, it surely would be best - and possible to effect without breaching the independence of the judiciary - for judges to be subject to some realistic code of behaviour, perhaps drawn up and administered by the proposed board.
The Denham group is only one of a number of bodies which are incubating proposals for reforming our legal or public administration systems.
The trouble is that one can take a horse to the water but cannot make it drink. Politicians believe that there are few votes in institutional or legal reform, especially when the 1997 general election is starting to cast its shadow.
Still, it would be a great pity if a reform like that proposed by the Denham group, which is both correct and urgent, were left to take its place in a slow moving queue.
