The New Courts Administration: A Case for a Systems Theory Approach
| Author | R.J.S. BAKER |
| Published date | 01 September 1974 |
| DOI | http://doi.org/10.1111/j.1467-9299.1974.tb00185.x |
| Date | 01 September 1974 |
The
New
Courts
Systems
Theory
R.J.S.BAKER
Administration:
A
Case
for
a
Approach
Mr.Baker
is
Head
of
the Unit
for
Management
in
the
Public
SerDiccJ,
Sheficld
Polytechnic.*
This article will discuss the Beeching Report of
1969
and the subsequent
changes in the administrative structures and processes supporting the
higher courts in England and Wales. It will suggest that
a
fuller analysis
of these structures and processes might be based on
a
systems theory
approach.
COURTS ADMINISTRATION: ITS NEGLECT IN THEORY
AND PRACTICE
Courts administration supports a state function, which, although ancient,
is still of basic importance in contemporary society.
It
constitutes
a
special
kind of public administration and could well provide some material for
comparative studies covering also other exceptional kinds of public
administrative systems such
as
those
of
hospitals and schools. All these
three types of institution are concerned with the vital interests of individuals
and the independence of certain professions. There
is
much good literature
on the administration of hospitals, some on that of schools, but virtually
none on that of courts. Nearly all books on the courts are written by lawyers
for
lawyers and are about legal procedures, and all-even Dr.Scott’s excellent
recent work
The
Crown
Court
-
virtually ignore administration?
So
does
the work of even such a critical sociologist and non-lawyer (one might
almost say anti-lawyer) as Professor Abel-Smith.2
Courts administration can be defined as the making of all the arrange-
ments
for
the staffing, servicing, timing and location
of
the courts and
their operations.
Of
all these processes, the various kinds of programming
*I am most grateful to Her Honour Judge Graham Hall, to His Honour Judge
H.S.
Pean and to senior officers
of
the Lord Chancellor’s Department for all their help, trouble
and information. Responsibility for fact and opinion in the article
is
mine alone.
This
article
was
written mostly bcfore mid-1973. Since then the first of the
new
annual seria
of
Statistics
on
Judicial
Administration
(HMO,
November
I
73)
has
been published. This
usefully amplifies but
does
not invalidate, the facts stated ierc.
PUBLIC
ADMINISTRATION
are the most important and dificult. Until the reccnt reforms, courts
administration was hard to dcscribe
or
reduce to any simple coherent
picture. It has not appealed to writers on either law, political
or
constitu-
tional theory
or
organization theory.
It
docs not fit into any of their
accepted patterns. Thcy mostly prefer institutions which can be fairly
simply described as logical hicrarchies clearly rcsponsiblc to defined
authorities
-
Ministers, boards, councils and
so
forth. This approach
also accords nicely with both classical organization theory and also with
traditional constitutional theory based on the responsibility and account-
ability
of
Ministers and clected public bodies. The labyrinthine network
of
English courts grew up over a long period, starting in the Middle Ages,
or
earlier, long before the days of any organization theory, or indeed of
the concept of parliamentary sovercignty. Even when this concept was
acccptcd, and in turn led to that of ministerial responsibility, courts
administration did not adapt itself to the usual pattern of governmcnt
departments, nor to that of local government. Thc administrative inde-
pendence of thc courts has derived, understandably, but not inevitably,
from their greatly valued independence in purely judicial matters. (There
is some parallel hcre with the independence
of
doctors and teachers.)
Right up to the time of the Beeching Report in
1969
it seems to have been
subconsciously accepted that the fragmentation of courts administration
uas
the price which society paid
for
an independcntjudiciary. The separate
authorities involved in various aspects of thc administration of Assizes,
Quarter Sessions and
a
few peculiar local courts, included the Lord
Chanccllor, the Lord Chief Justice, the High Sherriffs of the Counties,
the local authorities and, of course, thc courts themselves
-
individual
judges and their personal clerks,
as
well
as
thc clerks
of
the courts.
No
Minister, not even the Lord Chanccllor, accepted any general parlia-
mentary rcsponsibility for the administration
of
the courts, and there \vas
indeed no unified system of administration for either the personnel
or
the physical assets necessary for servicing thcm. The only exceptions were
the county courts, which have bcen administcrcd by civil servants in the
Lord Chancellor’s Ilepartmcnt since the
I~~O’S.~
The
Streatfeild Committee
In many respccts the English courts have long been regardcd as the best
in the world. Yct ‘the law’s dclays’ have bcen the subject
of
repeated
and justifiable criticism since long before the time of Shakespeare. The
English courts system has indeed not only been criticized, but officially
investigated and reformed at various times in the present and the last
century. Yet until very rccently, reforms have been legal rather than
administrative. The most recent enquiry before the Beeching
Commission
was that made in
1961
by Mr.Justice Streatfeild’s Committee. They were
concerned only with criminal courts, and their somewhat cumbrous
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