Court - Administration - in - The - United - Kingd

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Court Administration in the United Kingdom
Working Paper · January 2017

DOI: 10.13140/RG.2.2.15966.02881
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2.
Court Administration in the United Kingdom1
Piotr Mikuli & Natalie Fox
1. PRELIMINARY NOTES
According to the principle of separation of powers, the judiciary is one of the three
fundamental powers in a state. Undoubtedly, the activity of judicial authorities should fulfil
citizens’ expectations regarding the legal protection of their interests, on one hand, and the
effective and timely administration of justice, on the other hand.2 The latter objective immi-
nently involves the issue of safeguarding the proper functioning of courts, which essentially
requires their appropriate organization and adequate mechanisms of management of human
and financial resources. In Anglo-Saxon states, the fulfilment of the said functions has been
entrusted to specialist agencies whose constitutional task is to manage courts. The selection of
adequate control and supervisory and strictly organizational instruments is supposed to con-
tribute to an increase in effective3 and timely performance of judiciary tasks in both technical
1
This work is connected with Research Project No. 2016/21/B/HS5/00445, financed by the
National Science Centre, which the authors have carried out at the Jagiellonian University. This
chapter also draws on the data and the arguments advanced in two texts:
P. Mikuli, Organy, tryb i sposób kontroli sądownictwa powszechnego przez władzę wykonawczą w trybie nadzo-
ru administracyjnego w Zjednoczonym Królestwie i Republice Irlandii (research report, Institute of Justice, Po-
land) and
P. Mikuli, ‘Administrowanie sądami w państwach anglosaskich’, in P. Zientarski (Ed.), Model nadzoru nad
działalnością sądów i pracą orzeczniczą sędziów, Warszawa, Kancelaria Sejmu, 2015.
2
S. Dąbrowski & A. Łazarska, ‘O sprawiedliwości w wymiarze sprawiedliwości’, Palestra, No. 9–10, 2012, pp.
12–13.
3
Courts are established, among other reasons, for the implementation of the rule of law. On the relationship
between the fulfilment of this goal with the effectiveness of court administration, see W. Martin, ‘Court Admin-
istration and the Judiciary – Partners in the Delivery of Justice’, International Journal for Court Administration
Vol. 6, No. 2, 2014, p. 3.
1
and constitutional aspects.4 The aforementioned agencies have two interconnected constitu-
tional characteristics – on one hand, institutional independence and autonomy, and on the
other hand, a certain relation to the executive branch of government. On the margin of this
analysis, the cited criteria divisionis are not peculiar to court administration agencies because
independent agencies and other regulatory entities are built in the same way at the constitu-
tional level.
The subject matter of the following analysis is the administration of courts in the Unit-
ed Kingdom. It may be observed that the conceptual designatum of court administration sensu
largo consists of a series of eclectic activities that include, inter alia, issues such as manage-
ment of courts, engagement of support personnel (court clerks, secretaries, information tech-
nology experts and cleaning staff), ensuring of adequate organizational support for judges,
determination of the case-flow management system,5 provision of detailed information about
the work of courts, administration of websites that clarify rules of access to judicial authori-
ties,6 administration and management of court buildings (including handling of issues con-
cerning their lease and rent) or purchase and delivery of adequate technical services
measures.7 In this regard, we can introduce a further division and indicate that administration
generally encompasses issues in three areas: human resources (including technical support),
financing and property management.8
4
The relevant arrangement of the administrative structure of judicial authorities determines the proper efficiency
of their operation. See S. Kowalewski, Teoria struktury administracji państwowej, Państwowe Wydawnictwo
Ekonomiczne, Warszawa, 1973, pp. 11 et seq.
5
See Martin 2014, p. 11.
6
With a degree of simplification, we can say that even courts should fulfil directives of good administration in
their external work. For the conceptual scope of good governance, see M. Dębicki & A.J. Dębicka, ‘W poszuki-
waniu good governance’, in J. Boć & A. Chajbowicz (Eds.), Nowe problemy badawcze w teorii prawa admin-
istracyjnego, Wrocław, Kolonia Limited, 2009, pp. 195 et seq. Undoubtedly, the technical aspect of the function-
ing of courts is connected with the matter under analysis. The literature suggests that even though courts are
independent of the executive branch, they do not avoid the impact of phenomena relevant to the functioning of
public administration, such as new public management. See Martin 2014, pp. 12–13.
7
See P. Mikuli, ‘Administrowanie sądami w państwach anglosaskich – zarys problematyki’, in P. Zientarski
(Ed.), Model nadzoru nad działalności sądów i pracą orzeczniczą sędziów, Warszawa, Kancelaria Senatu, 2015,
p. 47.
8
The origin of this proposed analysis can be sought in the division of court administration tasks that is intro-
duced in the available literature; see K. Benyekhlef, C. Iavarone-Turcotte & N. Vermeys, Comparative Analysis
of Key Characteristics of Court Administration Systems, Canadian Judicial Council, Montréal, 2011, pp. 100–
102.
2
Assuming such a large conceptual scope of court administration, we must make sever-
al general remarks in the beginning of this analysis. First, the administration of justice by ju-
dicial authorities comprises activities that settle legal disputes. This means that activities un-
dertaken by judges are only of a judicial nature.9 It must be clearly determined that the per-
formance of strictly administrative activities does not fall within their scope of competence.10
In principle, the administration of courts is entrusted to a separate agency reporting to the
Minister of Justice.11 It is the state’s task and duty to ensure proper conditions of the judici-
ary’s functioning. It is well known that the state is responsible for any inadequacies of tech-
nical conditions in the administration of justice, including accountability for damages. The
organizational and the management aspects that accompany judicial activities contribute at
least indirectly to the exercise of civil rights and liberties. This correlation justifies the argu-
ment concerning the need to adapt the judiciary’s structure to citizens’ reasonable needs. Se-
cond, there is a problem regarding the protection of judicial authorities’ independence from
excessively broad administrative activities. In this respect, an important element of guarantee
is introduced by Article 6 of the European Convention on Human Rights,12 which states that
an individual is entitled to a fair and public hearing within a reasonable time by an independ-
ent and impartial tribunal established by law.13 The Constitutional Reform Act 2005 (hereinaf-
9
See S. Dąbrowski, ‘Władza sądownicza – definicja, funkcja, atrybuty’, in R. Piotrowski (Ed.), Pozycja ustro-
jowa sędziego, Warszawa, Wolters Kluwer Polska, 2015, p. 27.
10
However, it is difficult to deny the problems formulated in the literature that are related to the relevant demar-
cation between the administration of justice and strictly administrative (management) activities. The establish-
ment of the relevant relationship depends primarily on the adopted model of court administration. See Martin
2014, p. 14.
11
In the British system, a solution was initially adopted in which the superior control of the administrative ac-
tivity of courts was entrusted to the executive branch. This system depended on the constitutional position of the
Lord Chancellor, who held the function of the chief administrator of the judiciary. See also P. Mikuli, ‘Reformy
sądownictwa w Zjednoczonym Królestwie w latach 2005-2009’, in B.H. Toszek & T. Czapiewski (Eds.), Od
Thatcher do Blaira. Wielka Brytania na przełomie XX i XXI wieku, Szczecin, Wydawnictwo Naukowe Uniwer-
sytetu Szczecińskiego, 2010, p. 87.
12
In the British legal system, the Human Rights Act 1998 put into effect the European Convention on Human
Rights within the UK (hereinafter ‘the European Convention’). Retrieved on 16 December 2016 from
<http://www.echr.coe.int/Documents/Convention_ENG.pdf>
13
Although it is outlined in the European Convention, the judiciary’s independence is not necessarily connected
with the division of powers. See J. Alder, Constitutional & Administrative Law, 10th edn, Palgrave Law Masters,
London, 2015, p. 140.
3
ter ‘CRA 2005’)14 places the Lord Chancellor and other ministers under an obligation to fulfil
the guarantee of continued judicial independence.15 Judicial independence in the practice of
the courts is an important standard that makes it possible to exclude non-judicial authorities’
interference in the administration of justice.16 The requirement of independence17 creates the
negative aspect of the scope of activities relating to the administration of courts because in the
light of the standard of the right to a fair trial, interference in the area where judges are inde-
pendent is unacceptable.18 The management and the organizational activities of specialist
agencies exclude ex definitione the regulation of issues such as political preferences or the
professionalism of judges. Both of these spheres create guarantees of irremovability19 ex offi-
cio and are directly related to the principle of judicial independence.20 However, regarding the
administration of courts sensu largo, the admissibility of the organization of periodic training
courses for judges, the top-down determination of work standards or case-flow management
issues may raise reasonable doubts. Third, it is necessary to emphasize the relations among
the judiciary, the executive branch and Parliament. It is well known that the administration of
justice is correlated ab aeterno with monarchical power.21 These relations became concrete in
14
Retrieved on 16 December 2016 from
<http://www.legislation.gov.uk/ukpga/2005/4/pdfs/ukpga_20050004_en.pdf>
15
Section 3, CRA 2005.
16
See S. Golonka & C. Czech-Śmiałkowski, ‘Niezależność sądów i niezawisłość sędziów w prawie i orzecznic-
twie międzynarodowym’, Przegląd Sądowy, No. 1, 2007, p. 16.
17
Although the literature indicates a specific dissonance between judges’ relation with the environment and their
independence (Alder 2015, pp. 106, 416), the need to limit the scope of the possible interference of the broadly
understood public sphere in decision-making processes undertaken by courts does not raise controversies in
general. However, this trend is more evident if the courts have power to control the decisions of public admin-
istration or more broadly, the executive branch.
18
The close relationship between the administrative activity of courts and the principle of judicial independence
is indicated, e.g., by S. Dąbrowski 2015, p. 27.
19
Generally as regards the scope and nature of judicial responsibility in the UK (Alder 2015, pp. 141–143).
20
See A. Machnikowska, ‘Niezależność sądów we współczesnej myśli politycznej’, in M. Maciejewski, M.
Marszał & M. Sadowski (Eds.), Tendencje rozwojowe myśli politycznej i prawnej, Wrocław, E-Wydawnictwo,
2014, p. 265.
21
In the historical interpretation, the mutual relation is based on the fact that one power originates from another.
See S. Płaza, Historia prawa w Polsce na tle porównawczym, Księgarnia Akademicka, Kraków, 1997, pp. 494,
527; M. Szczaniecki, Powszechna historia państwa i prawa, Wydawnictwo Naukowe PWN, Warszawa, 1994, p.
164.
4
the light of the right set forth in Section 11(3) of the Senior Courts Act 1981,22 which provides
the procedure for the Queen’s removal of a judge from office on an address presented to her
by both Houses of Parliament. The parliamentary procedure for vacating the judge’s office is
sometimes regarded as a serious threat to the courts’ autonomy and independence.23 This situ-
ation is caused primarily by the possible influence of the executive branch on the proceed-
ings’ results. Nevertheless, according to a commonly known trend, the judiciary’s autonomy
evolves over the years. Along with the development of the British constitutional system, the
judiciary became largely autonomous by minimizing the relationship between the judiciary
and the legislature. Until 2009, the House of Lords24 was regarded as the supreme judicial
authority in the United Kingdom. It was competent to consider appeals against judgments by
higher courts.25 The establishment of the Supreme Court under CRA 2005 introduced the or-
ganizational and personal separation of the judiciary from the legislature.26 The Supreme
Court as the supreme judicial instance in the United Kingdom was established as a result of
removing the judicatory powers of the House of Lords and vesting broad judicial competence
in the new Court. However, the most decisive aspect in the development of the impartial and
independent form of the judiciary was that it became independent of the executive branch. Its
practical consequence was the limitation of the impact of the executive branch on the admin-
istration of courts27 as an element of putting the judiciary’s autonomy into practice. Fourth, it
22
Hereafter ‘SCA 1981’. Retrieved on 16 December 2016 from
<http://www.legislation.gov.uk/ukpga/1981/54/contents>
23
See J. van Zyl Smit, The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A
Compendium and Analysis of Best Practice (Report on research undertaken by Bingham Centre for rule of law),
pp. 105–106. Retrieved on 16 December 2016 from
<http://www.biicl.org/documents/689_bingham_centre_compendium.pdf?showdocument=1>
24
The jurisdictional competencies of the House of Lords originated from historical conditions in the United
Kingdom. See W. Arnold, ‘The Supreme Court of the United Kingdom (UKSC), an Exploration of the Roles of
Judicial Officers and Court Administrators and how the Relationship between them may be improved and en-
hanced: a Case Study’, International Journal for Court Administration, Vol. 2, No. 2, 2014, p. 19.
25
See P. Mikuli & P. Biskup, ‘Zjednoczone Królestwo Wielkiej Brytanii i Irlandii Północnej’, in P. Mikuli (Ed.),
Status prawny sędziego we współczesnych systemach politycznych, Koszalin-Gdańsk, Wydawnictwo Wyższej
Szkoły Humanistycznej w Gdańsku, 13, p. 31.
26
See P. Mikuli, Zasada podziału władz a ustrój brytyjski, Wydawnictwo Sejmowe, Warszawa, 2006, p. 126;
Martin 2014, p. 5.
27
5
is appropriate to recognize the existing need to guarantee28 the judiciary’s professionalism and
independence, which has also resulted in the introduction of proper mechanisms in terms of
the creation of the judiciary’s membership. De lege lata, the appointment of judges falls under
the competencies of special commissions with strictly defined terms of office.29
2. OUTLINE OF THE SYSTEM AND STRUCTURE OF THE JUDICIARY IN THE
UNITED KINGDOM
The topic of court administration also requires a brief comment regarding the organi-
zation and the structure of the judiciary in the United Kingdom. Our observation of judicial
practice allows us to conclude that the effectiveness and the efficiency of courts’ work do not
depend only on strictly organizational and structural reforms.30 Technical aspects of the judi-
ciary’s functioning are equally important issues. Thus, it is necessary to determine the scope
of administering activities in relation to each element of the judiciary.
The characteristics of the organization of the judiciary’s functioning in Anglo-Saxon
states appear complex and therefore difficult to summarize. This situation is caused mainly by
the broad spectrum of tasks assigned to courts that establish a platform for their jurisdiction
and the correlation of conditions relating to the territorial division of the state and the struc-
ture of the judiciary.
Because of the complex territorial structure of the United Kingdom, its judiciary dif-
fers from typical models existing in other states. It can be observed that the judiciary’s struc-
ture has been established in consideration of two criteria. First, the judicial system was orga-
nized on the basis of the scope of the involved judicial competencies. The criterion of material
competence allows us to divide courts into those that deliver judgments in civil cases and in
criminal cases. Second, we can distinguish between lower and higher courts in consideration
of their respective places in the judicial hierarchy. However, these categories do not form a
28
On the relationship among the procedure for the appointment of judges, the scope of their responsibility and
the principle of the independence of courts in American constitutional practice, see C.G. Geyh, ‘Judicial Inde-
pendence, Judicial Accountability, and the Role of Constitutional Norms in Congressional Regulation of the
Courts’, Indiana Law Review, Vol. 78, 2003, p. 211. Retrieved on 16 December 2016 from
<http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1836&context=ilj>
29
See P. Mikuli, ‘Reformy w Zjednoczonym Królestwie w pierwszych latach XXI wieku’, in S. Bożyk (Ed.),
Aktualne problemy reform konstytucyjnych, Białystok, Temida 2, 2013, p. 267.
30
Martin 2014, p. 11.
6
sufficient and an exhaustive formula for cataloguing the judiciary’s organizational and consti-
tutional structure in the United Kingdom.
The British legal system comprises not only courts but also tribunals,31 which general-
ly exercise control of public administration. Under the procedure referred to as the judicial
review of administrative action, decisions issued by public authorities are controlled. The pro-
cedure for the judicial review of administrative action is regulated in detail in the Civil Proce-
dure Rules 1998.32 The delimitation of the types of cases heard by the courts in British prac-
tice is a particularly difficult issue because it lacks any clear division into administrative cas-
es, on one hand, and civil and criminal cases, on the other hand. Thus, references to continen-
tal practices in this respect are not useful. Using simplified terms, we can observe a dichoto-
mous division of the jurisdiction of courts in the United Kingdom into criminal and civil cas-
es.33 Another difficulty arises from the former opinion that tribunals did not form part of the
British judicial system34, which reflected the mixed (hybrid) origin of these bodies. Referring
to the self-governing boards of appeals that exist in Polish constitutional practice would form
a distant but interesting analogy in this respect. From among many prominent representatives
of the Polish science of administrative law, it is worth quoting the views expressed by J.
Zimmermann, who identifies special characteristics of this decentralized and quasi-judicial
form of verification control of local authorities.35
Before considering issues relating to territorial division and the phenomenon of devo-
lution, we may note that the United Kingdom’s constitutional practice has developed three
separate judicial systems for England and Wales, Scotland and Northern Ireland.36 The struc-
ture of its courts reflects the principle of hierarchical order. Every court acts in a manner cor-
31
They are now established under the Tribunals, Courts and Enforcement Act 2007 (hereinafter ‘TCE 2007’).
Retrieved on 16 December 2016 from
<http://www.legislation.gov.uk/ukpga/2007/15/pdfs/ukpga_20070015_en.pdf>
32
Retrieved on 16 December 2016 from < http://www.legislation.gov.uk/uksi/1998/3132/contents/made>
33
See A. Budnik, ‘Sądy a trybunały administracyjne w Anglii’, Administracja Publiczna, No. 2, 2013, pp. 27 et
seq.
34
See A.A. Gillespie & S. Weare, The English Legal System, Oxford University Press, New York, 2015, pp.
589-590. This opinion is related specifically to the period before TCE 2007 and is not valid today.
35
See J. Zimmermann, ‘Jurysdykcyjna ranga samorządowych kolegiów odwoławczych’, Ruch Prawniczy, So-
cjologiczny i Ekonomiczny, No. 3, 2015, pp. 131 et seq.
36
See Arnold 2014, p. 19.
7
responding to its place in the hierarchy while fulfilling relevant obligations towards both
higher-level and lower-level courts.37
The highest court in the United Kingdom of Great Britain and Northern Ireland is the
Supreme Court, whose jurisdiction corresponds to what previously fell within the scope of
competence of the House of Lords. It also assumes responsibility for devolution issues, which
fell under the competence of the Judicial Committee of the Privy Council before the adoption
of CRA 2005.38 The Supreme Court consists of 12 judges who are formally appointed by the
monarch but are nominated by an elaborate procedure laid down in CRA 2005. The number
of judges is permanent, but it may be increased by secondary legislation (Order in Council).39
Higher courts in England and Wales form a three-level structure, defined collectively
as the Senior Courts of England and Wales. The High Court of Justice rules on civil cases of
the highest value in the first instance or rules as a court of appeals against judgments deliv-
ered by county courts. It consists of three divisions: the Queen’s Bench Division (of which the
Administrative Court forms an important part), the Chancery Division and the Family Divi-
sion. More serious criminal cases in the first instance and appeals against judgments delivered
by magistrates’ courts are heard in the Crown Court. The Court of Appeals acts as an appeal
body in criminal and civil cases against judgments delivered by courts of first instance. Lower
courts in England and Wales include the County Court, which decides on civil cases. Occupy-
ing the lowest level, magistrates’ courts decide on criminal cases and act as local courts.40 The
structure of courts in Northern Ireland reflects that in England and Wales. Additionally, the
two permanent military courts in the United Kingdom are the Court Martial and the Court
Martial Appeal Court.41 The regulation of their functioning is set forth in the Armed Forces
Act 2006.42
In Scotland’s judicial system, the higher courts are the Court of Session and the High
Court of Justiciary. The Court of Session consists of two houses: the Outer House and the
Inner House. The Outer House decides on some civil cases in the first instance in single-
37
See Gillespie & Weare 2015, p. 71.
38
39
Section 23 (1)–(2) of CRA 2005.
40
See also The Judicial System of England and Wales. A Visitor’s Guide, p. 6. Retrieved on 16 January 2017
from < https://www.judiciary.gov.uk/wp-content/uploads/2016/05/international-visitors-guide-12.pdf>
41
See P. Mikuli, Sądy a parlament w ustrojach Australii, Kanady i Nowej Zelandii (na tle rozwiązań brytyj-
skich), Księgarnia Akademicka, Kraków, 2010, p. 119.
42
Retrieved on 17 December 2016 from <http://www.legislation.gov.uk/ukpga/2006/52/contents>
8
person panels and on cases under the procedure for judicial review of administrative action.
The Inner House decides on appeals in civil cases. The High Court of Justiciary has jurisdic-
tion over criminal cases. Apart from hearing appeals from lower courts, it deals with more
serious crimes as a court of first instance; for this purpose, it may sit in Scotland’s major cit-
ies. Lower courts deciding on civil and criminal cases are the sheriff courts, whereas minor
criminal cases are resolved in Justice of the Peace Courts. Special Scottish courts include the
Scottish Land Court, which is competent to settle real property cases, and the Court of Lord
Lyon, which decides on cases of rights to family coats of arms.43
3.1 ENTITIES RESPONSIBLE FOR ADMINISTRATION OF COURTS IN THE UNITED

KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
3.1.1. England and Wales

The primary competence to ensure the efficient functioning of justice in the British le-
gal order was originally exercised by the Lord Chancellor, one of the ancient offices of the
Crown. Besides the judicial duties of that office (exercised in the Court of Chancery) and his
legislative duties within the House of Lords, the Lord Chancellor came to exercise powers
over the common law courts; this development exemplified other strong impacts of the execu-
tive branch on issues relating to the administration of justice. Along with the loss to the House
of Lords of its judicial competencies and the resulting reinforcement by the CRA 2005 of the
principles of judicial independence and the separation of powers, the Department for Consti-
tutional Affairs was established. As a result of systemic changes, it was subsequently trans-
formed into the Ministry of Justice, headed by the Secretary of State for Justice, who also
holds the office of the Lord Chancellor in practice.44 Therefore, his scope of competence as
the head of the Ministry of Justice has a dual character (i.e., it is both an element of the execu-
tive branch and exercises administrative control over the judiciary). Section 1 (1) of the
Courts Act 200345 and Section 39 of the Tribunals, Courts and Enforcement Act 2007 clearly
state that one of the assigned duties of the Lord Chancellor is “to ensure that there is an effi-
cient and effective system to support the carrying on of the business of courts and tribunals.”
Additionally, the head of the Ministry of Justice fulfils several tasks relating to the admin-
43
See Mikuli 2010, p. 120.
44
See Mikuli 2013, p. 266.
45
Retrieved on 16 January 2017 from < http://www.legislation.gov.uk/ukpga/2003/39/contents>
9
istration of justice in general. The Minister is in charge of various agencies and performs
managerial functions in the prison system.46 The Ministry of Justice itself took over the tasks
that had been undertaken by the Home Office until then. The Lord Chancellor also had ulti-
mate responsibility for the functioning of the judicial system in Northern Ireland but not for
the court system in Scotland. The effect of political devolution is that currently, separate Min-
istries of Justice function as part of the executive branch in England and Wales, Scotland and
Northern Ireland; their task is to administer the courts in the legal systems applicable in these
parts of the United Kingdom. The further evolution of the court administration system has led
to the creation of more authorities responsible for technical aspects of the administration of
justice in the devolved jurisdictions.47
In this introductory part, it is worth stressing that the concept of administrative super-
vision is not used with regard to the administration of courts in Anglo-Saxon states. The ad-
ministration of courts is understood as the management of the organization of courts by spe-
cialist agencies with the status of independent institutions.48 The scope of their tasks includes
taking care of the proper fulfilment of judges’ judicial functions. Central authorities are estab-
lished and related to the executive branch or – strictly speaking – the Minister of Justice re-
sponsible for courts’ administrative issues. Such regulation of the issue of court administra-
tion by institutions specializing in this field is a significant novum, although the idea about
focusing organizational and management competencies on a central authority was planned
only at the end of the 20th century. Individual agencies controlled by the relevant ministers are
now separated from departments. Relations between them are regulated by agreements as part
of soft law, which are concluded between the given ministry and the relevant Chief Executive
in the given agency. The agency chief is granted some independence in the determination of
the rules of agency management and in the delivery of public services. The relevant depart-
46
On a matter that is incidental to the primary analysis in this chapter, it is worth noting the criticism expressed
in connection with the procedure for the establishment of the Ministry of Justice. One argument was that the
Ministry would have excessive competencies, with the danger that the large number of matters falling under its
jurisdiction would practically result in the limitation of the funding for the courts. Second, shortcomings regard-
ing consultations at the stage of creation of the Ministry were criticised.
47
E.g., Northern Ireland Courts and Tribunals Service (NICTS) separated from the structure of the Ministry of
Justice headed by the Lord Chancellor. See Annual Report & Resource Accounts – Serving the Community
through the Administration of Justice, London, 2010, p. 10. Retrieved on 16 December 2016 from
<https://www.courtsni.gov.uk/en-GB/Publications/Accounts/Documents/p_ar_annual-report-2011-
12/Annual%20Report%20and%20Resource%20Accounts%2011-12.pdf>
48
See Mikuli (report), pp. 1–29.
10
ment is accountable for the agency’s actions that may be contrary to law.49 The scope of con-
trol over the agency’s proper functioning that is exercised by the minister depends on specific
characteristics of Framework Documents. In practice, significant difficulties are evident in the
proper division of competence in the determination of the policy carried out by the minister
and the actions performed by Her Majesty’s Courts and Tribunals Service (HMCTS). The
chief executive is responsible for the current management of courts, whereas the minister is in
charge of issues with an essential impact on the proper functioning of the office and of the
determination of general policy within this scope of cases.50
In England and Wales, HMCTS is the institution responsible for the administration of
courts and tribunals.51 It was established in 2011 as a result of the transformation and merger
of two separate entities: Her Majesty’s Court Service and the Tribunal Service. In earlier
times, the British constitutional system did not provide for co-ordination relating to the im-
plementation of court administration by means of a central institution in charge of the justice
system. The administration of courts was entrusted to local authorities, court clerks and even
judges themselves.52 Simplifying the position somewhat, we could observe the fragmentation
of objective competencies, which was an unfortunate solution from the perspective of econo-
my and management processes. At the same time, there was no visible reason for maintaining
the dispersed technical and organizational supervision of courts. It seems that this decision
was not sufficiently justified by the maintenance and protection of judicial independence. The
departure from the established situation and attempts to create co-ordinated and correlated
policies were supposed to contribute to the desired effectiveness of the justice system.53
An executive agency, HMCTS is subject to the Minister of Justice as a governmental
authority responsible for the justice system in England and Wales.54 Its tasks include dealing
49
See A. Le Sueur, J. Herberg & R. English, Principles of Public Law, 2nd edn, Cavendish Publishing, London
and Sydney, 1999, p. 165.
50
See P. Craig, Administrative Law, 7th edn, Sweet & Maxwell, London, 2012, pp. 87–88.
51
Also including the administration of undevolved tribunals in Scotland and Northern Ireland.
52
In this respect, it is necessary to distinguish between the organisational and the management spheres at the
institutional level, i.e., by introducing a specialised agency within the territorial limits of competence and the
sphere of court administration activities at the individual level. In the latter case, strictly technical executive
activities may possibly be entrusted to entities that have been responsible for the formulation of efficiency poli-
cies of the judiciary so far. See Mikuli (report), pp. 1–29.
53
G. Gee, R. Hazel, K. Malleson & P. O’Brien, The Politics of Judicial Independence in the UK’s Changing
Constitution, Cambridge University Press, Cambridge, 2015, p. 68.
54
See Gillespie & Weare 2015, pp. 195–196.
11
with administrative issues relating to higher and lower courts’ functioning in England and
Wales. The broad scope of the jurisdiction of HMCTS is limited by the territorial extent of its
competence. The administration of the Supreme Court is excluded from the agency’s jurisdic-
tion55 because the Supreme Court’s jurisdiction encompasses the entire territory of the United
Kingdom of Great Britain and Northern Ireland.56
The prima facie functioning of HMCTS conforms to the basic principles of the partner
model of court administration.57 On one hand, its essence includes the relative independence
of the external administrative authority and the strong impact of the executive branch58 on the
directions of the policy being implemented towards courts. On the other hand, it suggests dia-
logue with the judiciary as a whole.59 To some extent, Parliament is included in the frame-
work of the administration of courts through control activities60 relating directly to HMCTS.
The normative basis and the level of multilateral dialogue among the actors engaged in
the administration of courts are specified in the Framework Document.61 The agency founded
in 2005 is based on co-operation among the Lord Chancellor, the Lord Chief Justice and the
Senior President of Tribunals. The said document now determines the framework of co-
operation relating to the effective governance, financing and operation of courts and tribunals
within HMCTS.62 It is worth noting the form of amendment of the HMCTS Framework Doc-
ument. On one hand, it expresses elements of the partner model of court administration be-
cause substantive amendments to the document require co-operation and dialogue between
55
The organisational and the technical management of the structure and the support system of the Supreme
Court were regulated separately in CRA 2005 and in the Crime and Courts Act 2013. Retrieved on 16 December
2016 from <http://www.legislation.gov.uk/ukpga/2013/22/contents>
56
57
See Gee, Hazel, Malleson & O’Brien 2015, p. 70.
58
Nevertheless, various special competencies are allocated to the Lord Chancellor (Alder 2015, p. 140). As a
result, despite the explicitly expressed principle of judicial independence within the framework of concordats,
this office loses its authority.
59
Partnership refers to many aspects of court administration. See Martin 2014, passim. See also Alternative
Models of Court Administration, Canadian Judicial Council, 2006, pp. 99 et seq. Retrieved on 16 December
2016 from <https://www.cjc-ccm.gc.ca/cmslib/general/news_pub_other_Alternative_en.pdf>
60
The controlling function of Parliament can be seen, e.g., in the obligation of the Chief Executive of HMCTS to
submit relevant explanations.
61
Hereinafter the ‘HMCTS Framework Document’. Retrieved on 23 November 2016 from
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/384922/hmcts-framework-
document-2014.pdf>
62
Para. 1.5 of the HMCTS Framework Document.
12
the executive branch of government and the representatives of the judiciary. On the other
hand, it confirms Parliament’s controlling function with regard to court administration. This
trend becomes apparent in two respects. The first is through the inclusion of the factor of ac-
ceptance by Parliament regarding the content of any textual amendment to the HMCTS
Framework Document. Second, the lack of an established platform for dialogue lets Parlia-
ment apply a competence to resolve the resulting dispute, which in turn is a factor guarantee-
ing judicial independence.63
Moving on to discuss the organizational structure of HMCTS, we should begin with
its two components: the Chief Executive and the Board. The reason is that not only external
constitutional relations affect the courses of action of HMCTS, but the mutual interaction be-
tween these two authorities determines the status of HMCTS, too. The Chief Executive is
responsible for the day-to-day operations and the administration of HMCTS.64 His (or her)
functions also include the efficient and cost-effective management of human resources and
finances to ensure that it meets the agency’s objectives and targets, the development of the
agency’s strategy and business plans, the supervision of the staff’s performance, reporting
activities or the presentation of proposals for changes to the agency’s policy.65 His (or her)
legal status can be determined by referring to the material nature of activities regarding the
appointment procedure and the supervision of his (or her) activity by the Board. It must be
added that the Chief Executive is a civil servant, which determines the scope of this substan-
tive independence although only partly (i.e., within the scope of tasks other than the agency’s
functioning). Thus, the elements comprising the legal and the employment relationships with-
in the scope of the civil service cannot be referred to the Chief Executive to the full extent.
The modification of the clerical character of his (or her) function manifests itself in the lack of
unconditional subordination to the executive branch of government. Although the implemen-
tation of his (or her) tasks is subject to substantive evaluation by the Permanent Secretary,
which constitutes the personal element of verification of the agency’s work, activities in this
field require consultation with the Senior Presiding Judge.66 Consequently, the statement that
the material content of the Chief Executive’s function is part of the status of a civil servant in
extenso must be treated as unjustified. This issue is caused, above all, by the special subject of
the agency’s material jurisdiction and its normatively decreed independent character.
63
Paras. 10.1–10.4 of the HMCTS Framework Document.
64
65
66
13
The impact of the executive on the agency’s internal management becomes apparent
on a larger scale in the process of appointing the Chief Executive. He (or she) is appointed, in
accordance with the procedure applicable in the Cabinet Office, by a special panel that in-
cludes a senior judge nominated by the Lord Chief Justice.67 Decisions about staffing must
comply with governmental guidelines. In practice, this means the lack of personal independ-
ence. This view is by no means speculative and is confirmed by two correlated variables. The
first one is the correlation of the nomination process with governmental guidelines. The se-
cond one is the Permanent Secretary’s verification of the Chief Executive’s activity. We must
consider the extent of the Chief Executive’s independence in relation to the admissibility of
the autonomous selection of policies and decision making. In this context, it is worth indicat-
ing the Chief Executive’s important creative competence, which consists of the establishment
of clerical positions in courts. However, his (or her) freedom of decision is also limited to this
extent. First, some clerical positions are staffed on the basis of the Lord Chancellor’s deci-
sions. Second, the official supervision of the appointed clerical corps is excluded from the
Chief Executive’s jurisdiction. The reporting relationship is based on the competence shared
between the Lord Chancellor and the Lord Chief Justice, on one hand, and individual judges,
on the other hand.68
The second component shaping the agency’s structure is the Board. It constitutes an
authority with supervision and control competencies over HMCTS and has a mixed personal
composition. The Board membership is an expression of the partner model of court manage-
ment, taking into account the impact of executive branch and representatives of the judiciary
on its composition. The power of joint nomination is entrusted to the Lord Chancellor and the
Lord Chief Justice. However, the approval of the appointment is preceded by a special proce-
dure for the staffing of a given position in the Board.69 On the other hand, the Board member-
ship’s composition is left to the discretionary evaluation of decision makers; in the case of the
loss of confidence70 in any member, the Lord Chancellor and the Lord Chief Justice decide
67
68
Judges officially supervise clerks, covering the technical aspects of their activities and relating to current co-
operation within the court.
69
70
Trust seems to be the only substantive premise on which the revocation of a Board member depends. Thus, the
permanent nature of the appointment is not covered by any special protection, and the Board’s composition may
be subject to large fluctuations. However, further details are relevant regarding the revocation of a Board mem-
ber. Judicial members are subject to the revocation procedure agreed upon by the Lord Chancellor and the Lord
14
on the member’s revocation. 71 This provision is part of the adopted model of personal super-
vision of the Board members. On one hand, the Board members remain in a sui generis re-
porting relationship with the Lord Chancellor and the Lord Chief Justice. On the other hand,
the detailed specification of the supervision is a reporting duty, which assumes the submission
of an activity report to supervision authorities every three months.
The Board’s composition consists of the following 11 permanent members:
a) an independent non-executive chair recommended by a special panel compris-
ing nominees of the Ministry of Justice and a judge nominated by the Lord Chief Justice;
b) three judicial representatives, including the Senior Presiding Judge for England
and Wales72 and two representatives of competent judicial authorities relevant to the given
department sensu largo (i.e., courts and tribunals);
c) the chief executive and three executive directors; and
d) three non-executive directors, one of whom chairs the Audit and Risk Assur-
ance Committee.73
Some of the Board members are nominated, whereas others are members with respect
to their functions. The chair is appointed by a selection panel composed of representatives of
the government and the judiciary (a member nominated by the Permanent Secretary and a
member-judge nominated by the Lord Chief Justice). The chair’s impartiality is protected
with a special mechanism guaranteeing his (or her) independence from the judiciary and the
executive branch. Paragraph 4.8 of the HMCTS Framework Document provides for sui gene-
ris incompatibility; no person who is a serving judicial office holder or civil servant can seek
appointment as the chair. Although this provision does not state the prohibition’s temporal
framework, it would be reasonable to assume that the said premise is a preliminary pre-
condition. The stipulated mechanism that secures the impartiality of the chair of HMCTS un-
doubtedly reinforces the Board’s independence by excluding the possibility of the impact on
the directions of its work by other persons. We can even cautiously assume that the chair ex-
Chief Justice. The Lord Chief Justice officially supervises judicial members. The Lord Chancellor supervises
other Board members. The revocation procedure must be agreed upon with the Lord Chief Justice, but Board
members are treated as civil service staff members and subject to evaluation from an objective perspective. See
Mikuli (report), pp. 1–29.
71
72
This position was established according to the Courts and Legal Service Act 1990 (hereinafter ‘CLS 1990’).
The Senior Presiding Judge is appointed for the purpose of supervising presiding judges. Retrieved on 16 Janu-
ary 2017 from <http://www.legislation.gov.uk/ukpga/1990/41/contents>
73
15
presses a societal interest to that extent by acting as a moderator and a mediator between two
authorities representing different views on the administration of courts.74 Another group of
members is formed by representatives of the judiciary. Apart from the Senior Presiding Judge
for England and Wales, who is a permanent member, it includes two representatives, each
competent in the given department of court authorities.75 Their role in the Board is to create a
platform for communication between the Lord Chief Justice and HMCTS. However, the rota-
tional staffing of two additional positions assigned strictly to the judiciary is not limited by
any preliminary conditions. Three executive directors are representatives of the agency’s ad-
ministrative staff. It is worth emphasizing that the number of members in this respect is not
permanent and may increase for special reasons and for a strictly specified period of time.
However, an increase in the number of the Board members requires collaboration among the
Lord Chancellor, the Lord Chief Justice and the chair and their approval by consensus. Execu-
tive directors are nominated by the chief executive, who holds competence in this respect.
However, the selection is limited by the criterion of the internal division of competencies
within the agency. The chief executive may appoint three executive directors to the Board,
who must include the finance director and the tribunal lead director. The remaining three
members of the Board are selected on the basis of recommendations by a special panel com-
prising the chair, the executive director and a judge nominated by the Lord Chief Justice. To
this extent, the executive’s lack of direct influence on the selection of the Board members is
symptomatic. It must be stressed that a quasi-rotational mechanism was adopted concerning
the non-executive directors. They are appointed for a specific period of time; each date is a
result of arrangements made in the form of an agreement between the chief executive and the
chair.
Apart from permanent members, the Board may include employees of the Ministry of
Justice. The mechanism for supplementing the Board with optional members in this respect
may strengthen the impact of the executive branch on the directions of the Board’s work.
The HMCTS Framework Document specifies three procedures under which the Board
makes decisions. In the absence of an agreement among the Board members, the second pro-
cedure involves the joint decision of the Lord Chancellor and the Lord Chief Justice. The
74
Apart from the current management of the Board’s work, the chair acts as a liaison between the government,
departments and courts.
75
One representative is nominated by the Lord Chief Justice, and the other is nominated by the Senior President
of Tribunals.
16
third (subsidiary) procedure is based on the urgent matters clause and allows the chief execu-
tive to act on the Board’s behalf in certain matters.76
Regarding the scope of competence of HMCTS, it is possible to distinguish between
the tasks of the agency itself and the issues relating to the autonomy of the bodies whose per-
formance it oversees. Assuming a simplified formula, we must note that the tasks of HMCTS
encompass in genere technical and organizational77 aspects of the effective functioning of the
judiciary. The agency’s tasks are directed towards ensuring citizens’ proper access to the jus-
tice system (e.g., through co-operation with professional bodies representing lawyers). More-
over, the agency is responsible for improving case-flow management. Although the process of
the devolution of the agency’s tasks encompasses the judiciary in general, co-operation be-
tween HMCTS and the judges collectively is based on the further devolution of competencies
on a regional basis. For each of the six circuits in England and Wales, at least two presiding
judges, being judges of the High Court, are appointed. According to the internal division of
supervision78 adopted within the agency, the Senior Presiding Judge appointed from among
the judges of the Courts of Appeals is competent to carry out supervision. The presiding judg-
es’ task is to monitor court administration in the territory of the given court circuit. It is neces-
sary to note that their scope of competence includes the assignment of court cases to specific
judges (case-flow management). This means that one of the primary tasks that affects the effi-
cient functioning of the judiciary79 is de facto assigned to its representatives.
Presiding judges and the Senior Presiding Judge are appointed by the Lord Chief Jus-
tice, with the Lord Chancellor’s consent.80 Currently, the deputy senior presiding judge is also
appointed from among the judges of the High Court to support the fulfilment of duties by the
Senior Presiding Judge. Until 2012, court boards functioned as advisory bodies in the field of
76
77
Para. 2.3 of the HMCTS Framework Document states, “The objectives of HM Courts & Tribunals Service are
to provide the supporting administration for a fair, efficient and accessible courts and tribunal system; support an
independent judiciary in the administration of justice; drive continuous improvement of performance and effi-
ciency across all aspects of the administration of the courts and tribunals; collaborate effectively with other jus-
tice organizations and agencies, including the legal professions, to improve access to justice; work with govern-
ment departments and agencies, as appropriate, to improve the quality and timeliness of their decision making in
order to reduce the number of cases coming before tribunals and courts.”
78
As mentioned, the Lord Chief Justice supervises entities fulfilling tasks under HMCTS and representing the
judiciary.
79
80
Sec. 72 (3) of CLS 1990.
17
court management. They included representatives of judges and court clerks. The abolition of
these boards was the result of a broad programme aimed at the reduction of proliferating pub-
lic bodies and introduced by the new coalition government in 2010.81
The last factor that determines the agency’s level of independence is budgetary;
HMCTS is financed by the portion of the state budget allocated to the Ministry of Justice. The
Lord Chancellor and the Lord Chief Justice agree on the final amount of the expenses for the
functioning of the agency.82 It must be stressed that already at the stage of preparing the sup-
ply estimates (i.e., during the period preceding the allocation of specific funds for the Minis-
try of Justice), the Lord Chief Justice is informed about the progress of budget negotiations.
Doubts relating to the HMCTS supply estimates may be expressed in notes addressed by the
Lord Chief Justice to the Treasury Minister. This brief description of the agency’s budgeting
method calls for several comments. First, the integration of the HMCTS budgeting with the
Ministry of Justice’s budget largely reduces the agency’s financial autonomy. A detailed re-
quirement in the process of establishing the budgetary agreement between the agency and the
Ministry is the obligation to submit a financial statement83 to the Justice Minister. Second, the
available mechanisms for ensuring the sufficient allocation of funds to HMCTS seem insuffi-
cient to ascertain that the Lord Chancellor will discharge his statutory duty to ensure the pro-
vision of resources that will enable the efficient and effective functioning of the courts. It is
significant that if the Lord Chief Justice has reservations about the financial allocation, he
may report these to Parliament and the Lord Chancellor, but these are non-binding. In other
words, the agency’s budgetary autonomy is limited by the impact of the executive branch on
arrangements relating to the financing of the statutory activity of HMCTS. This fact is another
element that reinforces the role of the executive branch in the assumed partnership model of
court administration.84
3.2.2. Northern Ireland
81
Gillespie & Weare 2015, p. 196.
82
The procedure for working out an agreement for the acquisition of satisfactory funds for the needs of HMCTS
is described thoroughly in Paras. 7.1–7.4 of the HMCTS Framework Document.
83
It must be stressed that the Chief Executive of HMCTS is supported by a special audit committee in financial
matters. As the executive authority of the agency, the Chief Executive also holds the position of Agency Ac-
counting Officer. See Para. 3.4 of the HMCTS Framework Document. He (or she) is responsible to Parliament in
this capacity. Audit officers are responsible for the proper management of public funds in the United Kingdom.
84
18
The court administration model available for Northern Ireland corresponds to the Eng-
lish-Welsh model in terms of its basic principles. Therefore, this analysis can be reduced to
the discussion about the most important issues that form the framework and substrata of the
Northern Irish view on court administration issues.
At the governmental level, the Minister of Justice for Northern Ireland is responsible
for ensuring effective administrative support of the judiciary. The possibility of the proper
performance of tasks by the Irish Department of Justice is additionally reinforced by a special
executive agency called the Northern Ireland Courts and Tribunals Service (NICTS).85 As in
the case of England and Wales, the arrangements for the effective governance, financing and
operation of the NICTS are set out in its Framework Document.86 This is the common element
of the partner model based on the operations of specialist agencies and the strong dispersion
of acts regulating their activity, including the soft law. The determination of the general direc-
tions of the agency’s operation and the specification of the framework of the court administra-
tion policy fall under the competence of the Minister of Justice.87
The constitutional position of the Lord Chief Justice of Northern Ireland (hereinafter
the ‘Lord Chief Justice (NI)’) is determined by his dual functions as the head of the judiciary
and the President of the Courts of Northern Ireland. The Justice (Northern Ireland) Act 200288
provides for a broad scope of tasks assigned to him – from the organization of the judiciary
and the guaranteeing of benefits to the organization of training courses for judges. On this last
matter, the legislation indicates the possibility of forming guidance for judges. Nevertheless,
in the context of the principle of judicial independence derived from the rule of law, the guid-
ance is not substantive and is limited only to technical aspects. Two further tasks are fulfilled
by the Lord Chief Justice (NI). First, in the sphere of contact with society, this senior judge is
85
See Sec. 69 of the Judicature (Northern Ireland) Act 1978, establishing the Northern Ireland Courts Service. It
operated as an auxiliary local entity of the Lord Chancellor’s Department in Northern Ireland. At that time, the
Lord Chancellor was also the head of the judiciary in Northern Ireland. Since 2010, court administration issues
have been undertaken by an agency of the Northern Ireland Department of Justice. Retrieved on 16 December
2016 from <http://www.legislation.gov.uk/ukpga/1978/23/contents>
86
Northern Ireland Courts and Tribunals Service Framework Document (hereinafter the ‘NICTS Framework
Document’). Retrieved on 16 December 2016 from <https://www.courtsni.gov.uk/en-
GB/Publications/NICTS_Agency_Governance/Documents/Northern%20Ireland%20Courts%20and%20Tribunal
s%20Framework%20Document/NICTS-Framework-Doc.htm>
87
Para. 2.1 of the NICTS Framework Document.
88
Secs. 12(1A), 16 of the Justice (Northern Ireland) Act 2002.
19
competent to consider complaints. Thus, we can reasonably state that this authority indirectly
helps promote the deepening of public trust in courts and judges. Second, being authorized to
present the judicature’s views and opinions about the executive branch and the Northern Ire-
land Assembly, the Lord Chief Justice (NI) performs tasks relating to the representation of the
community and the judges’ collective views.89
As in the case of its English-Welsh counterpart, the NICTS fulfils tasks relating to the
technical and the financial support of the judicial department90 and contributes to the preserva-
tion of judicial independence. The NICTS also functions as an organizational base for the
executive department (the Department of Justice) in judicial matters. Special attention must
be paid to two additional functions with strictly substantive content. First, the NICTS is re-
sponsible for the enforcement of court judgments. We can assume that the effective fulfilment
of the function assigned to courts is structurally guaranteed by the Enforcement of Judgments
Office, which has been established for that purpose.91 Second, the tasks relating to the en-
forcement of certain criminal judgments have been entrusted to the agency. The NICTS sup-
ports the activity of Parole Commissioners, who are competent to modify the implementation
of the life imprisonment penalty.
As in the case of HMCTS, the NICTS consists of two internal authorities: the Chief
Executive of the NICTS and the Board. Current management and executive functions are as-
signed to the Chief Executive. He (or she) is responsible for managing the office staff and
implementing the budget. Concerning matters of audit, the NICTS is obliged to meet the
highest financial management standards.92 In implementing the budget, the Chief Executive is
accountable to the Permanent Secretary and the Northern Ireland Assembly.93 Thus, similar to
the case of England and Wales, the control of finances is divided between the executive
branch and the relevant legislature.
The Board of the NICTS is the supervising authority in the agency. Its tasks include
the control of office expenses, as well as the acceptance of reports on the activity of the
89
90
91
The effectiveness of court sentences was secured by state compulsion in the form of the possibility of using
relevant enforcement measures.
92
93
Para. 2.6 of the NICTS Framework Document states, “The Chief Executive is designated as Agency Account-
ing Officer for the NICTS by the Principal Accounting Officer and is accountable to the Permanent Secretary
and to the Assembly for those responsibilities.”
20
NICTS. The Board also acts as a liaison with the Minister of Justice by submitting infor-
mation about issues relating to the activity of the NICTS. The Board’s composition reflects
the significant impact of the executive branch on the NICTS’s work.
The Board consists94 of seven permanent members, with the possibility of including
additional ones. The Board’s permanent members are as follows:
1. the Chief Executive as the Board chair;
2. three heads of NICTS departments – the Head of Court Operation, the Head of
Tribunals and Enforcement and the Head of Finance and Estates;
3. a permanent representative of the Ministry of Justice, who also acts as the
Head of Access to Justice; and
4. two independent members.95
Other members who are entitled to participate in the Board’s sessions are four repre-
sentatives of the judiciary and, at the express request of the Chief Executive, the Head of
Business Support.96 It is worth noting the Board’s specific characteristics that limit the partic-
ipation of the judiciary’s representatives in the Board’s sessions. First, it is significant that in
Northern Ireland, the Chief Executive of the NICTS is also the Board chair. As can be ob-
served, there is no mechanism for including an independent factor (as an expression of com-
promise) that fulfils general societal functions even to a limited extent, which is a characteris-
tic factor of HMCTS. Second, the judiciary’s participation in the Board’s composition is lim-
ited to the possibility of reaching an agreement regarding the appointment of two Board
members. Independent members are appointed on the basis of recommendations from a panel
with a balanced composition, including the Chief Executive, a person nominated by the Lord
Chief Justice (NI) and a person nominated by the Permanent Secretary. Third, the judicial
representatives’ optional participation in sessions sensu stricto results from the function of
observers that is assigned explicitly to them. This means that they do not participate directly
in the management of the office. Such observers are appointed by the Lord Chief Justice (NI)
and the Head of Business Support at the Chief Executive’s request.97 They are accountable
only to the Lord Chief Justice (NI). The remaining Board members are directly accountable to
the Minister of Justice, who is competent to remove them from office in the event of a loss of
94
95
However, in this respect, independence and autonomy are inherent factors of the function of every member
participating in the Board’s work. See Mikuli (report), pp. 1–29.
96
The Head of Business Support may attend as requested by the Chief Executive.
97
Paras. 2.7–2.11 of the NICTS Framework Document.
21
confidence.98 It seems that the Board’s composition confirms the state of intense interference
by the executive branch in matters of court administration.
The final issue relating to the administration of the courts in Northern Ireland concerns
the financing of the NICTS. The allocation of funds for the operation of the body results from
the decisions made at the government level and the nature of its tasks. We can tentatively
form a thesis about the agency’s relative budgetary autonomy,99 which is supported by several
arguments. First, the direction of the financial provision transferred to the NICTS is correlated
with the grounds for the establishment of the given authority. The legislature reserves the
need to take into account the agency’s capability of providing services for the courts with
regard to the technical aspect of their functioning. Second, financial decisions (i.e., the alloca-
tion of funds) are made at the government level but after the completion of the procedure for
consultation with the Chief Executive. The procedure for adopting the budget for the agency
includes the Chief Executive’s obligation to submit a proposal covering the costs and the ex-
penses necessary for the proper operation of the agency. Regarding the acknowledgment of
this proposal, practical aspects of personal independence and the supervision of the agency’s
internal authority are revealed. It must be emphasized that the presentation of a budget pro-
posal must be preceded by consultations with the Lord Chancellor (the normative mechanism
of prior consultation). Another obligation of the Chief Executive to the Lord Chancellor and
the Board is to keep them informed about the progress of budget consultations between the
Department of Justice and the Chief Executive.100
3.1.3. Scotland
The fundamental framework of the Scottish court administration model is a repetition

of the solutions occurring in England and Wales, on one hand, and Northern Ireland, on the
other hand. This means that the present analysis can be limited to the identification of the
most important distinctive factors. In Scotland, competencies relating to the administration of
courts are entrusted to the Scottish Court Service (SCS). This independent agency functioned
in 2010–2015 and was established on the basis of Section 60(1) of the Judiciary and Courts
98
99
However, the criterion of the evaluation of the NICTS finances adopted by the employer, i.e., the adequacy of
the expenditure, may raise justified doubts.
100
Para. 5.1.1 of the NICTS Framework Document.
22
(Scotland) Act 2008 (hereinafter ‘JCSA 2008’).101 Apart from the SCS, the agency that was
competent to administer tribunals was the Scottish Tribunal Service (STS). In 2015, the SCS
and the STS were merged,102 with the establishment of the Scottish Courts and Tribunal Ser-
vice (SCTS),103 which is competent to ensure relevant administrative support for both courts
and tribunals. The characteristics of the Scottish court administration model require a brief
commentary about the impact of the executive branch on the justice system. It must be
stressed that the devolution process in Scotland led to a major separation of the judiciary from
central institutions.104 This fact is peculiar to the Scottish system and is connected with the
scope for the agency’s verification and supervision. Unlike its Anglo-Welsh and Northern
Irish counterparts, the SCTS is not subject to the Scottish Ministry of Justice or government in
corpore. The agency is declared to be not part of the Scottish government but of the Scottish
administration, which means that it is part of the executive branch sui generis. The Scottish
constitutional solution is a significant factor determining the status of the SCTS as an inde-
pendent agency.
The structure, organization and rules of operation of the SCTS are set forth in the
SCTS Framework Document105 concluded between the government (the Scottish Executive)
and the agency. The agreement specifies rules of mutual co-operation.106 First, the rule of
good communication must be observed. This comprises two interconnected elements. On one
hand, the government and the agency mutually undertake not to restrict each other’s discre-
tionary powers. In other words, under the obligation, there must be no interference in the
scope of the exclusive tasks of the Scottish Ministry of Justice and the agency. On the other
101
Retrieved on 16 December 2016 from <http://www.legislation.gov.uk/asp/2008/6/contents>
102
103
Sec. 130 (1) of the Courts Reform (Scotland) Act 2014 states, “The Scottish Court Service is renamed and is
to be known as the Scottish Courts and Tribunals Service (“the SCTS”).” Retrieved on 16 December 2016 from
<http://www.legislation.gov.uk/asp/2014/18/contents>
104
The independence of the SCTS with respect to membership is protected by the disqualification from member-
ship of the following: a member of the House of Commons, a member of the Scottish Parliament, a member of
the European Parliament, a councillor of any council constituted under Sec. 2 of the Local Government, etc.,
(Scotland) Act 1994 (c. 39), a Minister of the Crown or a member of the Scottish Executive. See Para. 4 of
Schedule 3, JCSA 2008. Retrieved on 16 December 2016 from
<http://www.legislation.gov.uk/asp/2008/6/schedule/3>
105
Retrieved on 16 December 2016 from <https://www.scotcourts.gov.uk/docs/default-source/scs---taking-
action/scts-framework-document---april-201549d5cea6898069d2b500ff0000d74aa7.pdf?sfvrsn=2>
106
Para. 2.1 of the SCTS Framework Document.
23
hand, communication and dialogue include the mutual representation of both parties in the
management of their own affairs. Second, the rule of co-operation in corporate governance
and in financial accountability is also important. Third, the rule of co-operation is determined
to safeguard the judiciary’s independence and to promote effective access to justice. Fourth,
there is the principle of external co-operation with other entities competent in the administra-
tion of courts. Fifth, the rule of loyal co-operation exists,107 pursuant to Section 65 of JCSA
2008, whose essence includes the necessity of including information, advice and proposals
submitted by the agency to the government. This catalogue of programme rules adopted in the
SCTS Framework Document is a normative expression of the agency’s autonomy in terms of
organization and competence.
Although the SCTS exemplifies a managing body with a high degree of independence,
the scope of its tasks is limited. The agency’s only statutory function108 are the delivery and
provision of services relating to the functioning of courts and tribunals. The agency performs
its tasks in consideration of the needs of society, as well as the interests of persons involved in
legal disputes. This directive for the agency’s fulfilment of competencies is specified more
thoroughly with the obligation to co-operate with persons having relevant competencies in
court administration, as far as this is practicable and appropriate.109 It is also worth referring to
the SCTS’s consultation rights. In the spirit of open dialogue, the government assumes (as
stated in the Framework Document) an obligation to consult the SCTS on any issues regard-
ing policy and legislative projects with impacts on the courts.110 The duty of consultation also
refers to cases when the Scottish government is engaged in relations with the government of
the United Kingdom regarding its policy or legislation relating to courts. Although consulta-
tion rights are not detailed, the Scottish government should include the position presented by
the SCTS in its decision-making process in the light of the rule of loyal co-operation. On the
other hand, the agency is obliged to consult the government on any issues that may affect the
operation of the Scottish justice system.111
The SCTS is responsible for the engagement of clerical personnel in courts according
to the rules and in the forms specified for civil servants. One complexity in the court clerks’
107
The rules of co-operation and practicable and appropriate premises are designated in Sec. 61(2) of JCSA
2008.
108
Secs. 61–64 of JCSA 2008.
109
Sec. 61 (2) of JCSA 2008.
110
111
24
legal duties arises from the substantive relationship between their clerical activities and strict-
ly judicial issues. Activities related at least indirectly to the administration of justice (e.g.,
case-flow or lawsuit management) have been excluded from the clerical regime. On these
matters, court clerks are subject to the direction of the judiciary.
Discussing the characteristics of the SCTS’s internal structure should begin by indicat-
ing that (as in the cases of England and Wales and Northern Ireland described earlier) two
primary authorities function in the field of court and tribunal administration. The first one is
the Chief Executive, who manages the day-to-day operations of the office and is personally
responsible for the correct disposal of expenses as the Accountable Officer.112 The Chief Ex-
ecutive is appointed by the Board on the basis of civil service regulations. The Board also
performs the day-to-day supervision of activities undertaken by the Chief Executive. The se-
cond authority is the Board, whose main task is to determine the general directions of the
agency’s operations. The Board is required to perform its tasks effectively and efficiently.
Particularly, the Board members must determine the general strategy of SCTS management,
propagate its goals and tasks broadly and ensure good co-operation between the clerks em-
ployed by the agency and judges at all levels.113 The Board is also responsible for reinforcing
society’s confidence in the operations of courts and tribunals. Thus, the Board is not only an
authority that supervises the agency’s work, but it also has quasi-planning competencies by
determining the agency’s strategy of operations. However, the agency’s independence be-
comes limited within the scope concerned. Although the Board independently prepares corpo-
rate plans, whose function is to ensure the proper operation of the SCTS, these must be ap-
proved by the Scottish government and then submitted to the Scottish Parliament. At the end
of each financial year, the Board also prepares special annual reports on its operations, which
are submitted to the government.114
It is particularly necessary to emphasize the reversed reporting relationship covering
the CEO and the Board. As opposed to the Anglo-Welsh model,115 the Board not only super-
vises the Chief Executive’s day-to-day performance of his (or her) tasks but also decides on
the internal delegation of tasks within the agency.
112
In accordance with Secs. 14 and 15 of the Public Finance and Accountability (Scotland) Act 2000. Retrieved
on 16 December 2016 from <http://www.legislation.gov.uk/asp/2000/1/contents>
113
114
Paras. 3.19–3.20 of the SCTS Framework Document.
115
It is worth remembering that in the case of HMCTS, the Chief Executive was entrusted with selective compe-
tence to replace the Board’s operations in specific extraordinary events.
25
The Board consists of eight judicial and six non-judicial members. Unlike in England
and Wales, the head of the Board is the Lord President. The Board also comprises ex officio
the Lord Justice Clerk,116 the President of the Scottish Tribunals and the Chief Executive.117
Among the non-judicial members, two are representatives of the legal profession – an advo-
cate and a solicitor practising their respective occupations in Scotland.118 The Board members
are appointed by the Lord President in accordance with the procedure established by the Scot-
tish Executive upon completion of the consultation process involving them. These members
hold office for a period not exceeding four years.119 It must be noted that the Board’s compo-
sition is an example of the partner court administration model. The inclusion of representa-
tives of the legal profession is aimed at reinforcing the implementation of the rule of external
co-operation and society’s confidence in the agency’s operations.
The SCTS was also granted relative financial independence in the form of a separate
budget excluded from the sphere of the financing of courts.120 The Board presents a budget
proposal to the government, which then submits budget proposals in the finance bill to be
approved by the Scottish Parliament. The government is obliged to co-operate with the SCTS
regarding the identification of its financial needs. If the planned budget amount is not ap-
proved, there may be a consultation between the Lord President and the Cabinet Secretary for
Finance. The parties are obliged to make every effort to reach an agreement. However, the
Scottish government makes the final decision on granting specific funds in the budget.121
4. CONCLUSIONS
The common element in the models of administration of courts in England and Wales,
Northern Ireland and Scotland is the establishment of a separate and relatively independent
managing body (agency) at the central level. We can conclude that the primary tasks of the
court administration agency are to ensure adequate technical and organizational support for
judges and to manage citizens’ access to courts. Agencies also play an important role in re-
116
The Lord Justice Clerk is the second senior judge in Scotland, after the Lord President of the Court of Ses-
sion.
117
118
Para. 2 (3) (a) and (b) of Schedule 3 to JCSA 2008.
119
Para. 5 (2) of Schedule 3 to JCSA 2008.
120
121
26
solving financial issues related to the functioning of the judiciary. Both groups of tasks are
part of a general trend identified with good governance and the new public administration, as
they take account of society’s needs with respect to the functioning of state authorities and
guarantee the proper allocation of funds earmarked for certain public tasks.
Similarities regarding the internal organizational structure of various agencies are also
significant. The heads of the agencies are provided with the competence to manage the cur-
rent operations of each entity and its staff. On the other hand, boards supervise the correct
implementation of the tasks entrusted to these institutions. Substantial importance is attached
to financial accountability. The composition of the managing boards reflects the degree of
implementation of the partner court administration model in each instance covered by this
analysis. The solutions adopted in Scottish constitutional practice seem close to the pure mod-
el in the sense that the representations of the judiciary and the executive branch are almost
equally balanced.
The provision for competence and personal supervision has an impact on the evalua-
tion of each agency’s independence. In England, Wales and Northern Ireland, the bodies re-
sponsible for the administration of courts are subordinated to the national Ministries of Jus-
tice. On the other hand, in the course of its historical development, the Scottish model is
based on the agency’s full independence.
The Supreme Court of the United Kingdom is excluded from the common model of
management of courts and tribunals. A few reasons can be identified here. First, the highest
courts are provided with an extended scope of autonomy in handling administrative matters,
which typically occurs in Anglo-Saxon countries. Second, for technical reasons and due to the
federal nature of the United Kingdom, it has not been possible to create a separate agency for
the purpose of supporting the Supreme Court. To have extended the tasks of one of the dis-
cussed agencies with issues regarding the support of the Supreme Court would have been re-
garded as ineffective and at least unfortunate from the political viewpoint. Third, an identified
trend in the literature is that the Supreme Court becomes gradually independent of both the
legislature and the executive branch.122 Consequently, none of the agency models of court
administration known de lege lata offers the right solution. However, it is noteworthy that
within the framework of the Supreme Court, the tasks related directly to the technical aspects
of its functioning are performed by the Chief Executive appointed by the Lord Chancellor
122
See Arnold 2014, p. 20.
27
upon consultation with the President of the Court.123 Thus, the impact of the executive branch
on issues relating to the administration of justice as broadly understood has not been eliminat-
ed with regard to the supreme judicial authority in the United Kingdom.
Another characteristic feature identified in models functioning in the United Kingdom
is the absence of regulations that are specified in detail (in strictly legal terms) regarding the
relations among government bodies that are politically responsible for the proper functioning
of the administration of justice and the courts. Co-operation in this respect is rather a result of
the legal and the political culture, which currently explains the significance of the Framework
Documents that have been considered in this chapter.
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