Where next for the Court Service? The struggle between the Judiciary and the Executive

14th August 2013

On 26th March 2013, a low key written ministerial statement appeared before the House of Commons from the Justice Secretary, Chris Grayling, declaring that he had asked staff to ‘explore proposals for the reform of the resourcing and administration of our courts and tribunals.’ Lodged between announcements that student loans were to be sold off and the reprivatisation of the East Coast mainline, it wasn’t until two months later when The Times splashed that one of the proposals was the full privatisation of Her Majesty’s Courts and Tribunal Service (HMCTS) that it attracted any attention.

From there, the ball started rolling: The Ministry of Justice denied the reports that a ‘wholesale’ privatisation was on the cards. It was revealed that management consultants McKinsey & Co and magic circle law firm Slaughter & May had been appointed to explore options for increasing revenue at HMCTS. A letter from the Lord Chief Justice was leaked. Since then, however, there has been silence as the proposals are worked on.

With the future of HMCTS in doubt, this blog post will give you a brief guide to the court service, as well as a look ahead to where it might be going. It uses a 2006 report commissioned by the Canadian Judicial Council into alternative models of court administration as the framework; a report that was influential in the judiciary’s thinking when negotiating with Jack Straw over the future of the court service in 2007.

The Executive takes charge

Originally, administration and funding of the courts was predominantly by local authorities. Although the Assizes received a subsidy from the Home Office, criminal and civil courts were largely run and staffed by local authority staff in local authority buildings. County courts would be found, not in dedicated court buildings, but crammed into civic buildings or magistrates’ courts.
It was against that background that a 1969 report into the courts chaired by Dr Beeching found “courts with no waiting rooms, no consulting rooms, no refreshment facilities and with toilet facilities which were disgustingly insanitary.” Lawyers, witnesses, police offers, victims and the accused would all jostle for space with disused furniture and each other.

That report led to the passage of the Courts Act 1971. While it may now be more famous for abolishing the Assizes and the creation of the Crown Court, the Act also had the effect of radically centralising court administration. The Lord Chancellor’s Department was transformed into a fully-fledged central government department with 10,000 civil servants running a unified court service.

This was the move into what the Canadian report describes as the executive model. In it, ultimate authority and responsibility flows through the Responsible Minister. Court administration is one part of a broader civil service and, often, a broader Justice department. The role for the judiciary in the model is ill-defined; whether their input is sought is purely a matter of executive discretion. One of the ideas fundamental to the model working and not compromising judicial independence is that there is a clear dividing line between judicial functions and administration: the allocation of cases to individual judges, for example, is a judicial function to be controlled by judges.

It isn’t difficult to see where tensions arose from. In 1989, Lord Browne-Wilkinson gave an FA Mann lecture that recalled Lord Hewart’s famous tract ‘The New Despotism.’ He pointed to several examples, such as the use of Deputy High Court judges or the number and quality of staff, which were ostensibly mere administrative decisions, but had a direct impact on the conduct of cases. After Lord Justice Purchas retired from the bench, he went on to pursue the argument that judges should run the court service in the New Law Journal.

The move to a Partnership

The end of the executive run court service was brought about by the constitutional reforms begun under Tony Blair. In 2003, on the day of the announcement that the Lord Chancellor’s position was to be abolished the senior judiciary and civil servants in the Lord Chancellor’s department had been meeting to discuss ways of better working together without an inkling of what was about to happen.

With each new announcement about the future of the Lord Chancellor, the judiciary felt it was increasingly necessary to try and negotiate safeguards for the court service. They wanted a service which would be accountable to the Lord Chief Justice as well as the Lord Chancellor, they wanted a bigger role for the judiciary in a new court service and they wanted the budget ring fenced to protect it from the new Ministry of Justice’s competing demands.

However, it was only with the installation of Jack Straw as Lord Chancellor in 2007 that they were able to achieve any progress and, having had sight of the Canadian report, elected for a partnership model. The judiciary had no appetite for taking court administration on themselves and envisaged a system which would guarantee a ‘judicial voice’ in the court service while day-to-day administration remained in the hands of professional civil servants, accountable to a joint judicial/executive board. It was with those intentions that Her Majesty’s Court Service (HMCS, later to merge with the tribunal service to form HMCTS) was created and the Framework document laid before Parliament.

While the 2006 Canadian report was ultimately cool on the partnership model, seeing it as a guaranteed way for gridlock or executive control by another name, the judiciary saw it as the best possible solution. By recognising the ultimate interdependence of the judiciary and executive in court administration, it was envisaged that the two could build a working relationship based on mutual trust.

The judges might have been right to be optimistic; the Swedish court service (Domstolsverket) has long operated on much the same basis with a significant degree of success.

New CTS – will judges run the courts?

Regrettably, leaked correspondence between the Lord Chief Justice and the Justice Secretary seems to indicate that that optimism has failed. In an attached note, Lord Justice Gross wrote that ‘the judiciary has for some time been concerned that continuing with the present model for HMCTS, both in governance and financial terms, was not an attractive option for the long term.’ Instead, the judiciary imagine a new court and tribunal service (“new CTS”).

But what would this new CTS look like and where are the judiciary trying to move to? The telling phrase comes later on in Lord Justice Gross’ note when he says that ‘The Chief Executive should be accountable, on a day to day basis, to the board and, in respect of broader matters of policy affecting the judiciary, to the LCJ.’ Note the omission of the Lord Chancellor; the Ministry of Justice is to be only ‘residually involved.’

This is more closely aligned to what the Canadian report would describe as a limited judicial autonomy and commission model. In this model, judges take responsibility for court administration, but backed by a commission independent of both the judiciary and executive. That commission could be used for a range of purposes; resolving disputes between the judiciary and executive over the court service, negotiating a budget or, in what seems to be the case with New CTS, safeguarding the judiciary against being drawn into political matters and day-to-day administration.

While such a model seems superficially attractive, the judiciary may get more than they bargained for with a New CTS. The Courts face two major tasks in the coming years even without the budgetary constraints the financial crisis has imposed. First, there is an ageing court estate that still suffers from some of the problems Dr. Beeching found in the 1960s. Family practitioners and judges need only think about the problems at the Principal Registry on High Holborn to understand the seriousness of the problem. Secondly, there is the procurement of major IT systems, an issue that has defeated everyone from HMRC to the Department for Work and Pensions. Judicial independence depends not just on a statutory guarantee, but a cultural perception (some might call it a mystique) of judges being above politics and above being mere managers of a public service. The impact of a failed IT system or a contested court closure might be enough to shatter that image, because they involve intensely political questions. The idea that there can be any neutral path that protects the judiciary might prove to be a fantasy.

Do the judiciary want to risk that perception in exchange for new powers over the court service? Might it be better to try and reinvigorate HMCTS? These are questions the judiciary need to be asking themselves seriously as the future of the court service is decided in the coming months. They may find that there’s no need to risk so much for what they want to achieve.

Abolition of the Administrative Justice and Tribunals Council

Written evidence to the Public Administration Select Committee, Dr Jeff King.

1. The AJTC is crucial for ensuring the distinctiveness of tribunals from the common law judicial process

Tribunal judges use a non-adversarial, or managerial, approach that is meant to assist the parties with their submissions. Parties are frequently unrepresented and research has shown this has a large impact on success rates. The more interventionist judging model is crucial for meeting, at least half-way, the mounting calls for state-funded legal representation before the tribunals. The more tribunals are viewed as courts, the more unsustainable the restricted access to Legal Aid will become.

The administrative justice landscape was explicitly meant, in the new system, to move beyond adjudication, for reasons of economy and justice. This orientation is distinctive and requires specialist review and guidance.

2. The MoJ will not presently be able to perform the same function

This distinctive culture is likely to be overlooked at the MoJ without the benefit of the AJTC expertise. In our experience, understanding the administrative justice field requires being conversant in a body of empirical literature and/or field experience in public administration.

Presently, the AJTC brings together people with expertise and extensive experience in areas that include experience in law and social science, the civil service, the Parliamentary Commissioner for Administration, advice sector and elsewhere. It is doubtful the MoJ could replace this expertise. The Council reviews the rules and operations of the tribunals, inquiries and other areas of the “administrative justice system,” something intentionally broader than the tribunals service. The AJTC regularly reviews legislation and regulations, and there is a statutory obligation for Ministers to consult the Council before adopting new rules for listed tribunals (TCE Act 2007, Schedule 7, Part III). Furthermore, the AJTC has special knowledge of how administrative justice connects with devolution arrangements. Again, there is little evidence that the MoJ has the capacity to absorb all these functions without the benefit of AJTC guidance.

3. The AJTC provides excellent value for money, and it plays a role in reducing the costs of dispute resolution

Even if the MoJ could ultimately take on such a role, it would not represent any greater value for money. The AJTC budget is approximately £1 million a year, over £400,000 of which is paid to MoJ and Scottish Government staff seconded for that purpose. That is excellent value for money for the oversight of a system in use by probably a majority of the population at some point in their lives.

As noted above, a key theme in the history of tribunal adjudication and in the recent reforms was keeping costs low. The AJTC facilitates this by exploring cheaper, less formal dispute resolution options that involve a lower likelihood of appeals than would be the case in a more judicialised model. MoJ staff, lacking the range of expertise of AJTC staff, would not be able to do this.

Read the full submission on the Parliament website