The classical theory of government says that there are three arms of the state: the executive (or government), the legislature (or parliament) and the courts.
While most public debate focuses on the first two, coverage of the third is muted — and too often it is excessively subservient and deferential. As a result, Ireland suffers an accountability black hole when it comes to our lawyers and judges. The results are prolonged delays and exorbitant costs.
Yesterday came the news that Susan Denham, the chief justice, is unhappy that the state has yet to establish a judicial council to oversee the judiciary. Ms Justice Denham said that the lack of such a statutory body had created a vacuum and “weighs heavily on the relationship” between the judiciary and the Dail. She added that its absence had been noted at international level and had affected Ireland’s reputation.
That is all well and good but if Ms Justice Denham wants to fully understand all of the factors that may have contributed to the delays in establishing a judicial council she should perhaps read back through some newspaper clippings.
A report in the Sunday Business Post from April 2007, for example, recorded how Michael McDowell, justice minister at the time, told the Dail he had been seeking a response from Mr Justice Murray, the chief justice, on proposals for a code of ethics for judges, a disciplinary process and a judicial council since January 2005.
He said that he had been expecting a response by the end of January 2007 and that he had been “in dialogue” with the chief justice for two years.
“I have waited a long time for the response . . . I have not received the response I requested,” he told Brendan Howlin, the Labour TD.
When asked by Mr Howlin if two years and four months was “an excessive time to wait”, Mr McDowell replied: “The deputy is entitled to make a judgement on that matter . . . the length of time speaks for itself.”
Coverage of Ms Justice Denham’s remarks focused on the failure of the government and legislature to establish a judicial council but the judiciary also has a case to answer for Ireland’s inglorious delay in this area. The fact that this was omitted is sadly characteristic of the general media reporting of our judges and lawyers, which too often is subservient and deferential — and we are also guilty of this.
There was extensive reporting of the Supreme Court’s welcome success in reducing its case backlog last year by resolving 524 cases while facing 109 incoming cases. But there was little coverage of the fact that, across the entire courts service, stretching all the way down to district courts, 515,000 cases were resolved last year while 685,000 new cases were accepted. In other words, the backlog grew by 170,000.
The new Court of Appeal has been subjected to detailed scrutiny by Seth Barrett Tillman, a law lecturer at Maynooth University.
Mr Tillman wrote in the Irish Law Times that the new court has made only modest progress in addressing the backlog in its first full year of operation before worryingly concluding that “at this rate, and under the assumption that the number of appeals does not grow over time, the total backlog will be solved in just under 11 years”.
So we hold a constitutional referendum to establish a new Court of Appeal to improve the operations of our courts and this is what we get?
The problem with our courts system is not primarily one of resources but one of management and processes. There is too much of the air of an academic common room, where the aim is to show how meticulous or just the process is, and not enough of the atmosphere of a busy branch of McDonald’s — where the aim is to satisfactorily manage the maximum flow of customers. The result is an egregious disregard for the maxim that justice delayed is justice denied.
It’s a similar story with the wider legal profession. The International Monetary Fund/European Union/European Central Bank troika recommended thorough reform of Ireland’s legal system. But the reforms that followed were delayed, diluted and rendered largely meaningless.
In Bleak House Charles Dickens wrote a memorable description of the English legal system in the 1850s. The litigation process “so exhausts the finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who would not give — who does not often give — the warning ‘suffer any wrong that can be done to you rather than come here!’”
Sadly, Dickens’ description is almost as valid today in Ireland as it was in England in 1852-53 when Bleak House was published. In addition to focusing on what is not in place yet, it would be good if we could apply some criticial thinking to what is already in place.
