5. Judicial governance and modern human resource management for judges and the courts in Ireland
This Chapter explores the role of human resource management (HRM) in courts. In particular, based on the OECD analysis, this chapter explores key areas for the development and improvement of judicial HRM in Ireland, including regarding overall HRM methodologies and clarity of responsibilities, process modernisation and standardisation, data collection and analysis, retirement and temporary resources, judicial workforce planning, as well as learning and development.
The role of human resource management in courts has evolved over time, as has the need to develop more comprehensive approaches. What began as purely an administrative function has increasingly developed into a complex activity that requires a strategic outlook. The sound management of human resources of the judiciary is increasingly viewed as a critical lever for the efficiency of the justice system overall. This chapter explores key areas for the development and improvement of judicial human resource management in Ireland.
5.1.1. An evolving field of growing importance
Judiciaries generally have a special position among public sector organisations in Western democracies. In the past, their independent position shielded them from direct legislative and executive intervention, which also meant that they often remained insulated from public and political demands for more effectiveness, efficiency and transparency (Visser, Schouteten and Dikkers, 2019[1]). This started to change in the late 1980s and early 1990s, when courts in many countries were confronted with increasing caseloads, while economic downturns required budget cuts. Courts across Europe and elsewhere could no longer rely on the government to increase judicial positions, and had to focus on streamlining operations and finding other ways to reduce costs. This coincided with the rise of movements such as “Reinventing Government” (Ridley, 1995[122]; Osborne and Gaebler, 1992[123]) and “New Public Management” (NPM) (Ferlie, 2017[2]), suggesting that public sector organisations should become increasingly efficient, cost-effective and transparent. Especially when performance-based budgets were introduced, courts had to start thinking differently about how they measured their own performance to justify their budgets and especially requests for more judicial positions. Given the link between judicial efficiency and thriving economic and business activity, improvements in judicial staff performance can enhance efficiency of the system and of the country’s economy as a whole.
Some courts across the globe quickly embraced these ideas. Courts in Singapore, for example, were and continue to be early leaders in adjusting their operations to more cost-effective approaches, streamlining processes, introducing performance measures, and tracking and reporting on them. Court standards, along with different ways to assess judicial performance, were initially introduced in courts in the United States, as they were also organisationally separate from their governments and already fully responsible for all organisational matters. In the early 1990s, courts across Europe also began to rethink their own performance and what it meant for their operations and staffing needs.
The late 1980s and 1990s were also the time when increasing numbers of judiciaries created judicial councils or similar organisations within the court system to take on a broad range of responsibilities for the organisation of the judiciary, especially those related to judicial human resource management. Nevertheless, in many countries, judicial sector human resource management is still new, which is partly why elements such as general number of workdays, work hours, vacation and sick time for calculating full-time equivalent (FTE) positions are often not clearly established. Strategic and performance based workload planning is also therefore new in many jurisdictions. The establishment and acceptance of performance measures for judges is particularly sensitive, even when established by judges and when performance reviews rest completely in the hands of the judiciary, mainly due to concerns that such reviews and their consequences may be used to limit a judge’s independence. This is an important concern that must be safeguarded when such processes and related performance measures are introduced, with the Judicial Council playing a relevant role.
5.1.2. Characteristics of modern court performance management
As courts have increasingly introduced performance measures for their operations, the judiciary have had to ensure that it can deliver on the new standards set. Court performance and that of its judges go hand in hand, as do independence and accountability. Today, the general understanding of judicial independence encompasses not only control and authority over the legal decisions of individual judges, but also, depending on the jurisdiction, an array of administrative responsibilities, including authority over budgeting, information technology (IT), human resources, allocation of judicial services, judicial selection, retentions, assignments, and the education and training of judges and justice system staff (ENCJ, 2017[3]).
To support courts in these efforts, in 2013 the European Councils of the Judiciary (ENCJ), the organisation of national councils of judiciaries in EU member states, began to evaluate judicial independence and accountability across member states through the lens of performance measurement (Keilitz, 2018[4]). The ENCJ states that superior performance is the product of accountability. It recognises that judicial independence and performance accountability and transparency go hand in hand, the latter being a necessary condition of the former. In its 2017 report, the ENCJ asserts that a “Judiciary that does not want to be accountable to society and has no eye for societal needs will not gain the trust of society and will endanger its independence in the short or long run”. Conversely, it notes that “accountability without independence” reduces a judiciary to an agency of the executive or legislative branches (ENCJ, 2017, p. 11[3]).
The main human resource management responsibilities related to selection, hiring and disciplinary processes, including complaints against judges, are placed clearly with the judiciary by the ENCJ and other international standard-setting bodies (Venice Commission, 2010, p. 8[5]) . The same generally applies to responsibility for training (ENCJ, 2021, p. 9[6]). As it is the judiciary’s ultimate responsibility to ensure the proper functioning of the courts, policy-making responsibility regarding performance measures for judges and the courts (ENCJ, 2019[7]), establishing measures for judicial and related staff distribution, and strategic direction for the human resource development of judges would also likely reside with the judiciary. The arrangements made for these purposes in each country will define where the responsibility for implementing these policies, managing the required procedures and creating the required administrative structures lies.
In the Netherlands, for example, the administrative management of the judiciary was under the Ministry of Justice until the creation of the Council for the Judiciary in 20021 (see Box 5.1).
Until the Council for the Judiciary was created in 2002, Dutch judges generally worked as independent professionals, with much autonomy in determining their individual judicial workload and little attention paid to management, organisation, budget or performance. Their working culture was described as combining “individual autonomy and administrative passivity… frequently justified by reference to the constitutional doctrine of the separation of powers” (Bunjevac, 2017[8]; Langbroek, 2010[9]). Judges tended to form an informally operating “corps” of generally like-minded individuals with often comparable backgrounds, habits and interests, hierarchically on a different level from judicial assistants and law clerks (Leeuwen, 1991[10]). Internal court organisation, case assignment and work division were informally arranged on a collegial, consensual basis by all judges working in a particular court (Ingelse, 1996[11]). Court funding was input-based, with courts receiving yearly budgets from the Department of Justice based on departmental guidelines.
Much has changed in the past two decades, including the creation of the Council for the Judiciary. The transition was carried by judges who felt they had to take greater responsibility for the management and control of their workload, and the needed different management and administrative adjustments and policies. The steadily increasing workloads required a greater control and professionalisation of how courts organised themselves. Today, selection, training and career development are managed internally by the judicial branch (Holvast and Doornbos, 2015[12]), (Langbroek, 2010[9]).
Source: (Bunjevac, 2017[8]); (Langbroek, 2010[9]), Organization Development of the Dutch Judiciary, between Accountability and Judicial Independence, https://doi.org/10.18352/ijca.39; (Leeuwen, 1991[10]), The judiciary in the Netherlands. Composition and Ideas of the Sitting Standing Magistrates; (Ingelse, 1996[11]), “Worthy of reference? A reflection on the position of the judge and the officer of justice”, https://ingel.home.xs4all.nl/publications/Rechterlijke%20onafhankelijkheid%20heeft%20haar%20prijs.pdf; (Holvast and Doornbos, 2015[12]), Exit, Voice, and Loyalty within the Judiciary: Judges’ Responses to New Managerialism in the Netherlands, https://doi.org/10.18352/ulr.317; (Sterk and Van Dijk, 2016[13]), “Financing the Judiciary in the Constitutional Framework”, https://www.rechtspraak.nl/Organisatie-en-contact/Contact/Documents/NJB.pdf.
In Ireland, judicial selection and hiring is set to become the responsibility of the Judicial Appointments Commission, if its creation is approved by the Oireachtas and signed into by the President.2 Complaints against judges and related disciplinary processes are now the responsibility of the Judicial Council created in 2019, as is the responsibility for judicial training in all its forms, such as on-boarding, continuing training, and in-house and external training. Leave and sick requests are dealt with by each Court President, as is a certain degree of “frontline” tracking of judges’ ability to handle their workload in a timely manner. Court Presidents also establish when additional positions are needed. However, these tasks are yet to be supported by standardised guidance, relevant data and staff to assess them. In addition, there is no committee specifically dedicated to human resource management on the Courts Service Board. Looking ahead, examples from other countries could prove insightful in strengthening Ireland’s approach to locating judicial human resource management responsibilities.
For example, the Scottish Courts and Tribunal Service Board has a “People Committee” that oversees human resource management policies and functions for the service,3 while the Judicial Office for Scotland supports the Lord President in responsibilities related to judicial training, welfare, deployment and other management issues.4 Similarly, the Council for the Judiciary in the Netherlands is responsible for human resource management for the judiciary.5 Based on the analysis above, there appears to be a need for further clarification on where some of the human resource management responsibilities lie for the judiciary in Ireland, as well as additional specialisation in this area.
Today, courts and their administrative organisations increasingly recognise the important role human resource management plays in achieving organisational goals and strategies. When efficiency and timeliness is understood as one important element for delivering fair and quality justice, it becomes crucial for the judiciary to have the necessary human resources, including judicial numbers and qualified support staff, and adequate organisational structures. Reportedly, demands on judges have grown in recent years, with judges increasingly expected to make fair and quality judgements, as well as manage their work efficiently, apply modern technology to deliver timely decisions, and enhance access to the courts. They are also called to relate to an increasingly diverse society and reflect diversity among their ranks.
At the same time, societal developments, technology advances and economic trends trigger changes in the law the judiciary must adapt to, which requires strategic forward-looking planning. Often, this can involve adaptations to workload changes, including through the incorporation of both temporary and permanent staff. Lack of effective planning for the future can pose particular challenges when numbers of positions for all court levels are anchored in the law, and when options for part-time and temporary hires are limited or non-existing, as is currently the case in Ireland.
Workload planning becomes especially challenging when government budgets are tight for longer periods of time, as it has been the case in many European countries, including Ireland. Needed investments in staffing and infrastructures in these cases often lag behind and further compound backlog (not just in the courts). In turn, the working conditions for judges become more challenging, and these positions become less attractive to a new generation. Particularly when larger internationally operating law firms enter the legal market in a country, as has been the case in Ireland and as promoted by the Irish Government, the range of attractive job options for bright dynamic lawyers changes.
A 2018 study developed in the United Kingdom outlined the challenges courts face when hiring and retaining judges, which could be relevant for Ireland. The conclusions of the report were that attracting the best candidates to the bench may require greater flexibility in working practices, greater support for judges and nuanced ways of measuring judicial workload (Turenne and Bell, 2018[14]).
Understanding how attractive the position of a judge is to well-qualified legal professionals in Ireland is an important element to plan for future hiring. Equally important is to both retain the judges who have served the Irish people well despite challenging conditions, and to ensure that they can and want to perform well in the future. The UK survey identifies what judges need to support more strategic workforce planning, with related studies in other countries pointing to similar results (Casaleiro, Relvas and Dias, 2021[15]).
Those responsible for supporting planning for an effective judiciary in Ireland, and for supporting Irish judges will find many helpful points to consider in the abovementioned studies. Looking forward, it might be helpful to collect similar information in regular increments in Ireland.
The weighted caseload study conducted in Ireland provided for the first time data to understand judicial position needs, and created the basis for future workload planning. As mentioned, caseload studies have long been conducted in US courts, and increasingly across Europe (CEPEJ, 2020[16]) and other countries (see Box 5.2). Countries have also increasingly promoted sustainable approaches that are able to factor workload shifts in staffing practices throughout the years, such as periodic obligations for the judiciary to review the levels of the required judgeships.
In jurisdictions such as California, where the first weighted workload study was conducted for the courts in 1963, the superior courts are required by law to submit a report to the legislature that provides an update on the need for new judgeships every two years (Judicial Council of California, 2020[17]). With almost 60 years of experience in using weighted workload data for workload planning, the courts have a fine-tuned system in place that continues to be adjusted as legislation and other conditions change. It provides the needed details to assess shifts in resource needs as changes in caseloads and processing requirements occur in individual locations, select case types, changes in complexity, differences among more rural and urban centres, or across the entire state. This data collection is supported by software, and case data come from an equally advanced automated case management system that is regularly updated.
A similar approach has evolved at the federal level in Canada. The Judicial Affairs, Courts and Tribunal Policy Section of the Ministry of Justice is tasked with assessing requests for additional judicial resources from the courts. A software-based simulation model informs evidence-based proposals for new positions. The software is used to collect, analyse and forecast the effects of changes in workload (both in volume and complexity). One part of the information used by this system is similar to the information on case process steps included in the time study and Delphi estimation to assess judicial time requirements as part of the judicial workload study in Ireland. The needed case process data, such as incoming, interlocutory hearings and trials, is also entered. The software applies a standard Business Process Modelling Notation that allows a case path to be followed, showing the varying demand for judicial resources for different case types and in different locations. After detailed programming and time and case data development and entry, the system can pinpoint bottlenecks, delays and the time judges take for different aspects of the case flow, such as time to resolve motions, hearings, judgements and case conferences.
The system used in Canada currently tracks and analyses the following data (Bellis, McKinnon and Murchie, 2015[18]):
Time by which cases may have been delayed at each milestone because of resource constraints (e.g. lack of judges).
How long different tasks take to perform per case by case type.
Number of judges needed to process cases in each period, accounting for expected absences due to non-case related work or other circumstances (travel, education, vacation, sick leave, retirement, etc.).
A slightly different approach is used by the courts in the Netherlands, which have been conducting workload studies since at least 2014 (CEPEJ, 2020[16]). A computer-supported work-sampling method is applied via a mobile app specifically designed for this purpose. A notification pops-up at 12 random times across the day (seven days a week) asking the respondent to record the current activity performed, without the need to record its duration or start and ending time (CEPEJ, 2020, p. 32[16]).Statistically, if a large enough number of respondents provide a sufficiently representative sample of random work moments, this methodology provides representative information on the different types of activities performed by the participants, and of the standard duration of the work of each respondent. In 2017, over a period of 61 weeks, 1 859 respondents were sampled out of a population of 5 100 justice officials that included judges, judicial officials, trainees and other legal support staff reporting on work related to different case categories and on non-case-related work. The results are vetted via Delphi study, as in traditional weighted workload studies. Such a system can be developed when needed case data are easily accessible in an automated manner, if such automated application can be used by all involved, and if the population is large enough to capture the ranges of actions for all different case types.
Ireland has already taken important steps in this journey, with the first set of base data available. A group of judges and Courts Service staff have been introduced to the methodology, understand the data needed and the collection processes better, have learned to analyse the results, and can continue to further develop and fine-tune the data and calculations with the needed support. This will be relevant for estimating the impact of new legislation, new case management practices and changes in caseload trends, as well as for informing the development of an effective automated case management and other IT solutions for the courts.
To ensure effective future workload planning, other data specific to human resource management may be relevant, such as upcoming and long-term retiring schedules, sick leave trends to plan for better back-up options, and hiring data that provides information on applicant trends to understand if current needs in terms of skills and diversity can be met in the future. In combination with data to provide information on diversity gaps to meet diversity aims for the judiciary (which still may need to be defined), these data help to understand if current outreach and hiring practices must be adjusted to meet future workforce needs and goals. Data to understand what attracts potential applicants to the judiciary, and what precludes others from applying, may also prove insightful. These kinds of data are currently applied to human resource planning across other government sectors, and are used by the UK judiciary for these purposes.
Other workforce planning factors that could be considered are upcoming legislative changes, and the impact of changes in operations and staffing across the justice sector and related social service providers. An Garda Síochána, for example, registered a significant increase in the volume of white collar and cyber type crime in recent years, and created specialised units to be better able to respond to these crimes. The increase in this crime type raises the number of cases coming to the DPP and the courts, likely with increased complexity, as the investigative resources increase. Similarly, if judicial resources to respond more effectively to these and other cases are increased, the police, prosecution, probation, legal aid and others will be impacted, and there will be a need for changes in the numbers of registrars and other Courts Service staff.
Strategic workforce planning should occur within the context of the wider justice system. The increasing complexity of the legislation and wider justice system ultimately require workforce planning to be supported by more advanced software, such as that used in Canada and elsewhere. For instance the upcoming family law reform changes introduced by the Assisted Decision Making (Capacity) Act 2015, the Legal Services Regulation Act 2015 which provides for the introduction of a pre-action protocol for clinical negligence claims (the PAP), further EU law requirements and likely changes due to Brexit all trigger significant changes in workload at several court levels. Their likely impact can be forecasted relatively effectively when time data by process steps and detailed case process data are available for the different case types affected by new legislation. The workload study can provide the basis for developing such a system.
The responsibility for judicial appointments is set out in the Irish Constitution (articles 13.9 and 35.1), and implementation is further regulated by law (Court and Court Officers Act 1995), similar to many other common law and most civil law jurisdictions. The new Judicial Appointments Bill 2020 introduced a new nine-member Judicial Appointments Commission to address years of criticism of the current judicial appointments system. The new commission and its approach have also prompted scrutiny (Law Society of Ireland, 2021, p. 16[19]). Comments have related to the composition of the board, as well as the need for increased transparency in the selection process and a stronger focus on judicial diversity. While selection is to be based on merit only, how merit is defined seems to be not clearly stated (Irish Times, 2020[20]). Once the Commission is created, it will not hold the sole responsibility for judicial selection; the current proposal as of May 2022 is that three names for each vacancy will be submitted to the government, to allow recommendations for appointment by the government, and finally subject to appointment by the President under Article 35.1.
Qualification criteria for the selection of candidates is stated in a general manner by law, and is not targeted for different judicial positions published. The selection process was reported to be time consuming and lacking modern pre-screening of applications, leading to some delays when new positions were being filled. Box 5.3 outlines some standards for judicial selection developed by different countries and institutions, which could provide potential insights for Ireland in strengthening its hiring practices.
The ENCJ: The ENCJ has developed and published minimum standards for the selection of judges, including basic guidance for the publication of clearly defined selection criteria.
The Commonwealth Latimer House Principles: These principles recognise that “at a minimum, the public must be informed of the characteristics that qualify persons for judicial office and the procedures that are followed when an individual applies, or is considered for appointment”. The principles further stress that the criteria should be informed by the fundamental objectives of equality of opportunity, appointment on merit, and the need to address gender inequity and other historic factors of discrimination in the context of their particular jurisdiction.
Judicial Appointment Committee (JAC) in England and Wales: Published and detailed selection criteria, along with measures such as the use of independent assessor, as in England and Wales, would address some of the criticism of the Irish Judicial Appointments Commission. The website of the Judicial Appointment Committee of England and Wales provides potential applicants with a range of helpful information, and the information provided for each vacant position is detailed and clearly stated.
Source: (ENCJ, 2012, p. 10[21]), Development of Minimal Judicial Standards II, https://www.encj.eu/images/stories/pdf/GA/Dublin/final_report_standards_ii.pdf; (Smit, 2015[22]), The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice, https://production-new-commonwealth-files.s3.eu-west-2.amazonaws.com/migrated/press-release/documents/Compendium%20on%20Judicial%20Appt%20Tenure%20and%20Removal%20in%20the%20Commonwealth.pdf; (JAC, 2022[23]), Senior Circuit Judge, Resident Judge (Snaresbrook and Nottingham), https://apply.judicialappointments.digital/vacancy/EUW6VUFQLwb57BM0b5wx/.
Understanding what well-qualified lawyers are looking for when applying for a new position, including in the judiciary, is essential for effective workforce planning, both in terms of effective hiring and to ensure that sitting judges continue to be engaged and remain on the bench.
Job satisfaction is directly linked to performance, and depends on factors often going beyond salaries or prestige (or personal satisfaction from work), such as reasonable working hours and working conditions, options to choose part-time work when needed or for a certain period of time; a promising career outlook; support for knowledge and skills development and professional growth; and a focus on ensuring the well-being of those employed.
An organisation striving to ensure the high quality, efficiency and effectiveness of its employees would need to invest in creating the conditions for high engagement and productivity. While many of the necessary elements are in place in Irish courts, some have been identified as requiring attention. In particular, there appears room to further ensure work-life balance and its associated well-being, adequate IT and support tools, and more flexibility options. A survey of judges and their support staff to better understand their needs, including a review of retention, combined with a study of applicant trends would be a good next step to better understand what is needed and what triggers applicants to enter the judiciary.
Effective planning can also strengthen diversity among the judiciary. Regarding the equal representation of women on the bench, Ireland is placed relatively well in comparison to other European countries. While the most recent data available from the CEPEJ indicate that around 40% of the Irish judiciary are women, which is in the lower-middle range across Europe, the 50% of women on the second instance courts and 40% on the Supreme Court are in the middle to upper range compared to other member states (CEPEJ, n.d.[24]). Difficult working conditions, regular travel and limited flexibility might be reasons behind only 40% of women serving on the first instance courts, and may be one aspect to address to encourage a more diverse applicant pool.
Regarding ethnic diversity, 2021 civil society organisations’ data indicate that the percentage of non-Irish nationals has been increasing to now almost 13%. The percentage of non-Irish nationals in Dublin is even higher, and religious diversity is also increasing (Pollak, 2022[25]). The fact that the oath judges swear when they join the bench does not include an optional secular alternative to the current form of judicial declaration contained in Article 34.5 may keep those who are agnostic or of a different faith from applying. In 2014, the UN Human Rights Committee suggested that this should be amended (UN Human Rights Committee, 2014[26]), with such proposals submitted to Parliament since 2012 (Department of Justice, 2012[27]). The pressures to diversify the judiciary indicate that it may be a good time to take this up again. Collecting data to understand whether lawyers from diverse ethnic and religious backgrounds apply for judicial positions would also enable the design of outreach programme to attract them in the future.
Calls for reviews have highlighted that most candidates joining the bench were barristers. All of these elements point to the need to better assess incoming applicants to judicial vacancies, who may be missing and why, and why do some groups appear to succeed disproportionally often.
The United Kingdom provides an example of efforts to reach potential future applicants of different backgrounds, including female lawyers and vulnerable groups. As shown in Box 5.4, the special Pre-Application Judicial Education (PAJE) programme initiated by the England and Wales Judicial Appointment Committee offers a range of options for lawyers of different backgrounds to gain greater exposure to the courts.
The JAC has included the importance of encouraging judicial diversity in its recent strategy. The JAC takes an equal merit approach, giving priority to candidates from underrepresented groups (gender or ethnicity) if they are of equal merit on selection. In 2020-21, the approach was applied to five shortlists, allowing 133 candidates to progress, and ultimately seven recommendations were made using this approach. At the same time, it is recognised that judicial turnover is low and demographic changes among the judiciary will be slow over time. Between 2014 and 2019, the number of women in judicial roles increased from 24-32%, but there was only a 2% increase in appointments from black and minority ethnic backgrounds. Comparatively, the increase in diversity within tribunals has been somewhat quicker.
To encourage diversity, the JAC also permits judicial shadowing, and in 2019 created a Pre-Application Judicial Education Programme to train lawyers from diverse backgrounds so that they can begin career planning early and feel more equipped to apply for judicial roles.
As part of the PAJE programme, the JAC hosted an online workshop in 2020, which was attended by approximately 200 people from underrepresented groups. The JAC publishes a diversity update twice a year, and launched a new research project in 2020 to look at how to target groups earlier in their career at qualifying test stage. It also created a Targeted Outreach and Research team to pilot outreach projects for court and tribunal roles, and to identify and work with potential candidates. For 2021, a special focus will be on projects to increase the ethnic diversity of selection panels and international judicial diversity.
Sources: (JAC, 2021[28]), Annual report and accounts: 1 April 2020 to 31 March 2021, https://judicialappointments.gov.uk/wp-content/uploads/2021/07/Judicial-Appointments-Commission-Annual-Report-and-Accounts-2020-21-July.pdf; (Courts and Tribunals Judiciary, 2019[29]), Pre-Application Judicial Education Programme (PAJE), https://www.judiciary.uk/diversity/pre-application-judicial-education-programme-paje/; (Lord Chief Justice of England and Wales, 2019[30]), Judicial Diversity Statistics 2019, https://www.judiciary.uk/wp-content/uploads/2019/07/Judicial-Diversity-Statistics-2019-1-2.pdf.
An important part of strategic workforce planning is considering the impact of retirement rules and retirement options, and tracking retirement schedules to ensure that hiring procedures start early enough. Effective succession planning requires data to track retirement dates, and recruitment should be planned in advance to accommodate hiring processes and potential delays. Succession planning becomes more multifaceted when positions with particular specialisation needs must be filled, and when aims to increase diversity among the judiciary have to be considered.
Part of the future planning may consider retirement schedules. The current retirement age for judges in Ireland is 70, in line with the judicial retirement age in many countries.6 Early retirement is possible, but there can be no extension to the term. As in many other countries, the option to increase the retirement age has been debated for some time. In Ireland, as in most Western industrialised countries, average life-expectancy has increased steadily over the decades, and many in their late 60s are mentally and physically as fit as prior generations in their 50s. Many would prefer to continue working for longer, especially if temporary or part-time options are available as they grow older. Considering the existing resourcing pressures on the Irish Courts, options to work beyond 70 and to opt for part-time work could help retain useful expertise and offer greater work-life balance for those who seek to ease more slowly into retirement.
The approach to judicial retirement age varies across OECD membership. In England and Wales, for example, the Parliament is currently planning to revise judicial retirement ages from 70 to 75 (UK Parliament, 2021, p. 53[31])This change has been driven by a shortage of judges, compounded by past recruitments failing to yield as many viable candidates as needed in a system that requires two years to complete a full recruitment and training process. In Northern Ireland, Supreme Court judges retire at 70. For judges in the High Court, the retirement age was increased to 75 in 2021, despite concerns over the diversity of judges, opportunities based on age or length of career (Department of Justice, 2021[32]). In Scotland, the government opened a consultation on increasing the mandatory retirement age for judges from 70 to 72 or 75 in 2020. The majority of responses (73%) were in favour of raising the minimum age to 75 to retain judicial skills and experience. Those who felt it would negatively impact judicial confidence raised concerns around judicial diversity and a slow rate of change (Scottish Government, 2021[33]).
Federal judges in Canada must retire at age 75. Judicial retirement ages for provincial courts vary by province but it is typically 70 years (Canadian Judicial Council, 2021[34]). In most US states, the average retirement age for judges is 72 years, but it can be as late as 90 in some states, such as Vermont (National Centre for State Courts, 2021[35]). In Australia, the retirement age for federal judges is 70. State mandatory retirement ages vary among the provinces between 70 and 75, and 65 for magistrates. In some Australian states, such as New South Wales, the established mandatory retirement age for judges is 72. However, judges serving as temporary officers can retire five years later, at 77 (Neilson, 2021[36]) (Appleby et al., 2018[37]). In New Zealand, judges are required to retire at age 70 although they may still be appointed for two further years on a part-time acting basis (see Box 5.5 for further details) (New Zealand Law Society, 2022[38]), (District Court of New Zealand, 2022[39]).
At the federal level in Canada, (Department of Justice Canada, 2021[40]) superior court judges must retire at age 75, but many retire when they reach 65. Judges can opt for supernumerary status, i.e. they continue to serve on the bench until they reach the maximum retirement age, but with a reduced workload (Government of Canada, 1985[41]).Supernumerary judges account for almost 20% of all active federally appointed judges (CSCJA, n.d.[42]).
At the provincial level, the Manitoba Courts created a senior judge programme in 2011 for retired judges to supplement judicial resources. These senior judges are subject to the authority of the Chief Judge, who has the power, authority and jurisdiction of a regularly appointed judge. Senior judges are prohibited from engaging in any remunerative occupation that is inconsistent with the office of judge. They are compensated pursuant to a legislative defined per diem scheme, and cease to hold the designation of senior judge when they advise the Chief Judge of non-availability (Province of Manitoba, 2011[43]). In response to backlogs created during the COVID-19 pandemic, the government in British Columbia reappointed three retired, senior provincial court judges, all of whom agreed to return to service to help reduce backlog (Burns, 2020[44]). The Alberta Provincial Courts use a mix of full and part-time judges and justices of the peace. Temporary judges may be regularly assigned to a city or to a fixed number of days per week in smaller courts (Alberta Courts, 2021[45])
The use of retired judges is common in most US states. For example, Nevada has a formal programme, the Senior Judges Program, to recall retired judges to active service with the goal of improving access to justice. Retired judges are employed where sitting judges are unable to sit due to training, vacancies, illness or recusal (Supreme Court of Nevada, n.d.[46]). Some jurisdictions also have rules for the appointment of special judges, who are attorneys who may be appointed as temporary judges. In California, for example, a special Temporary Judge Program has been created, whereby the Presiding Judges of the trial courts may appoint qualified attorneys to serve as temporary judges. These judges assist the public by providing the court with a panel of trained, qualified and experienced attorneys who may serve as temporary judges if the court needs judicial assistance that it cannot provide using its full-time judicial officers (Calfornia Courts, 2021[47]).
Several civil law countries also allow judges eligible for retirement to be designated as substitute judges (e.g. Belgium, Denmark, Israel, Montenegro, Norway) to cope with difficulties related to vacancies due to absences or to a backlog affecting the efficiency of the courts (CEPEJ, 2018, p. 5[48]). In the Netherlands, lawyers, law professors and civil servants can be appointed as “Deputy Judges”, who are paid by session in a scheme that includes preparation, and can sit on a three-judge bench or handle small cases.7 To manage backlog resulting from the COVID-19 pandemic, legislation was adjusted to enable courts to temporarily bring retired judges back during the pandemic; usually judges must retire at 70.
In Ireland, it is generally understood that most judges serve to retirement age (70), and it is not clear that those who have retired earlier would be interested in returning on a part time basis or temporarily. The comparative examples above, however, highlight that senior and retired judges with flexible options to make up for temporary staff needs may be interested in uptaking such options.
The wish to increase the retirement age primarily applies in countries where younger lawyers may not consider the judiciary a top career choice, or where select specialty positions cannot be filled within a few years. Otherwise, increased retirement ages limit the courts’ ability to renew, diversify and bring in younger generations. Loss of expertise can be partially avoided by offering options for phased retirements and serving on a temporary or part-time basis for select tasks after retirements. This could be considered in Ireland, especially as more recent research has pointed to some of the negative sides of increasing the retirement age. For example, a 2020 US study found a drop in productivity when retirement ages are increased (Ash, 2021[49]).
Closely connected to retirement is the need for effective succession planning. This requires that retirement schedules for the coming years are established and that there is a process to assess the current judicial workforce, including evaluating current competencies and identifying gaps in competencies, both at a given point and considering forthcoming judicial departures. It would be important to assess future needs and develop strategies to meet them.
Effective succession planning also means that the hiring process is planned well in advance so that those coming newly to the bench ideally have some overlap with the retiring judges. This will ensure a smoother transition phase and allow sufficient time for onboarding and training. Such time for overlap would also address one of the current issues the courts face when judges from a lower bench are appointed to higher courts, and start while still having to spend time writing judgements. A more phased approached to retirement that allows judges to continue working could help address the issue that judges planning to retire cannot be assigned cases that require longer judgement writing as they are not allowed to continue handing down judgements after retirement. Options for a phased retirement to provide for late career flexibility would ensure that judicial expertise and experience continues to be available, while providing a better work-life balance.
Sound succession planning also helps ensure that new judges come to the court with a set workplace and needed support staff in place. Judges have reported that in their experience it is important to match new judges with experienced registrars at the beginning to ensure the effective handling of cases. For instance, US courts developed succession planning guides that may also have value for the Irish courts (Wagenknecht-Ivey and Zahnen Cruz, 2013[50]; Metcalf, 2011[51]).
The employment of temporary, part-time and retired judges is currently not possible under Irish Law. Irish judges do not have an early minimum pension age and their compulsory retirement age is 70 in line with the Irish Government’s policy on compulsory retirement in the public service.
The existing limitation to flexible work options could potentially create challenges at all court levels to accommodate judicial absences, such as long-term illnesses and maternity/paternity leave. The Irish judiciary at all levels has shown flexibility and willingness to fill in for absent colleagues. However, the COVID-19 experience has heightened these challenges. The significant inflow of cases expected to come to the courts in Autumn 2022 may lead to crisis situations for urgent cases, while adding to increasing backlogs across the court system. Such a situation can affect those coming to the courts, especially those seeking protection; impact business operations; and lead to stresses within the judicial system that can result in rushed decisions and burnout for judges and other court staff, with the related short- and long-term implications.
To address temporary shortages in judges due to longer-term illness and to tackle serious backlog issues, especially the expected initial post-pandemic case surge, engaging temporary judges may be an approach to consider. Especially when judges are appointed for life, as is the case in Ireland, additional judicial positions should only be created to address steadily growing workload trends that cannot be resolved otherwise, and be limited for a specific period of time.
5.7.1. Employment of temporary and part-time judges
Temporary and/or part-time judges are available in some countries around the world. Like in Ireland, life tenure for judges is anchored in many constitutions and statutes, often stating incompatibilities for judges to perform any other professional activities. These regulations are interpreted and structured to protect judicial independence and to exclude potential conflict of interest situations. At the same time, some regulations appear to have accommodated a certain degree of flexibility, while stressing the importance of appropriate safeguards to ensure judicial independence and impartiality. A 2017 study conducted in Australia aimed to capture these discussions and experiences, and could be relevant to further discussions on this topic in Ireland (Appleby et al., 2018[37]).
The aim of enabling temporary or part-time employment of judges in general, and specifically after they reach official retirement age, could be to 1) ensure that temporary resource gaps due to judicial conflict situations, illness and other absences can be effectively addressed without sacrificing quality of decisions or creating significant delay; 2) provide for an enhanced work-life balance and well-being for judges throughout their career; and 3) provide a post-retirement option that ensures judicial expertise continues to be available for special assignments, as a back-up, for backlog teams, and for training, mentoring, outreach, etc.
When considering temporary judicial appointments, their complex nature should be taken into account, as while they could deliver benefits for the efficient administration of justice, they may raise concerns about the independence of the judiciary. For this reason, such appointments should be used exceptionally and ensuring appropriate safeguards to avoid undue influences and conflicts of interest (Appleby et al., 2018[37]; Council of Europe, 2015[52]). Box 5.6 provides additional considerations on the employment of part-time and temporary judges.
Experiences from other countries have provided information that could be relevant to consider if temporary or part-time judges are to be appointed in Ireland.
Relevant considerations
Clear rules must be in place to avoid undue influences and conflict of interest to ensure that temporary and part-time judges can perform as envisioned. Maintaining the independence of the judiciary should be considered as the crucial value (Venice Commission, 2007[53]).
The option to bring in temporary and part-time judges reduces opportunities to bring in younger and more diverse group of lawyers, can delay dealing with inefficient processes, and should not be seen as a permanent solution to staff shortages (see Appleby et al., 2017).
Potential benefits
Support for backlog reduction, short-term fluctuations or coverage of absences: Appointing temporary judges could help deal with case backlogs, respond to unprecedented workload fluctuations or hear a case when the regular judge is absent.
Retention of talented retirees: Being able to draw in experienced judges for special tasks, as back-up to cover shortfalls, as special backlog teams or for training can help ensure that skills and expertise are available when needed.
Provision of flexible work options: When part-time assignments are available during the career of a judge it can assist in judges balancing family needs and can make these positions more attractive to a broader range of talented applicants.
Source: (Venice Commission, 2007[53]), Report on Judicial Appointments by the Venice Commission; (Appleby et al., 2018[37]), Contemporary challenges facing the Australian judiciary: An empirical interruption, https://law.unimelb.edu.au/__data/assets/pdf_file/0003/3159147/01-Appleby-et-al.pdf.
Part-time work options could be important to ensure that those serving within the court can work effectively. It can also impact the courts’ ability to attract the best candidates for judicial and other court positions, which in turn impacts others working at the court. According to Irish stakeholders, the courts are increasingly facing challenges to remain a top career option for young graduates, including in terms of recruiting registrars and judicial assistants.
Common law countries sometimes resort to professional judges sitting occasionally to address staffing shortages on the bench or for special projects, such as backlog reduction teams (see Box 5.7).
UK regulations allow for the appointment of temporary judges to some courts (such as the Supreme Court, the Crown Court and the High Court Scotland). These judges can be drawn from the Court of appeal of England and Wales, Court of Appeal of Northern Ireland, or the Inner House of the Court of Session (Appleby et al., 2018[37]). In addition, temporary officers can be drawn from a supplementary panel of retired judges from the Supreme Court and retired territorial judges – Constitutional Reform Act (CRA), section 39(4). These retired judges can become part of this list only if they have retired from judicial office no more than five years ago, and are younger than 75 (CRA, section 39[9]). With the mandatory retirement age at 70, this means that there is a window of five years to be part of this supplementary panel. For example, a number of retired Commercial Court judges and Queen’s Counsel or other experienced practitioners who practice regularly in the Commercial Court are authorised to sit as Deputy High Court Judges in the Commercial Court. Deputy judges are used for applications and trials to ensure that the targets for lead times can be maintained. Deputies will only be used either when the parties agree that the matter may be dealt with by a deputy, or when the judge in charge of the Commercial Court considers it suitable for the matter to be dealt with by a deputy (Judiciary of England and Wales, 2021, p. 62[54]). Furthermore, appointed judges may request to work part-time work for a certain period, provided it will not adversely impact court and tribunal services (JAC, n.d.[55]).
Across the UK nations there are other options available to engage judges on a part-time basis that may be less applicable to Ireland, but that illustrate the range of options some jurisdictions require to cover increasing caseloads. For example, “recorders” are Crown Court judges sitting for 30 days a year and paid on a daily-fee basis. Appointed by the Queen in consultation with the Judicial Appointments Commission (CRA, section 21[1]), they can sit in some of the lower levels of the UK courts system: Crown and County courts. These positions are also considered as the first step on the judicial ladder, they hear and manage cases, determine claims, and help parties prepare for trials (Courts and Tribunals Judiciary, n.d.[56]).Appointments are for five years, and can be renewed (Appleby et al., 2018[37]).
Source: (Judiciary of England and Wales, 2021, p. 62[54]), Business and Property Courts: The Commercial Court Report 2020-2021 (Including the Admiralty Court Report), https://www.judiciary.uk/wp-content/uploads/2022/02/14.50_Commercial_Court_Annual_Report_2020_21_WEB.pdf ; (JAC, n.d.[55]), Part-time judicial roles,
(JAC, n.d.[55]) https://judicialappointments.gov.uk/part-time-judicial-roles/; (Courts and Tribunals Judiciary, n.d.[56]), Recorder, https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/judges/recorder/; (Appleby et al., 2018[37]).
Performance management, especially for judges, is a complex and sensitive issue that needs to be distinguished from court and case performance management, despite the necessary links.
There are different international standards in relation to judicial performance. For instance, the Bangalore Principles of Judicial Conduct outline core measures of judicial performance (UNODC, 2003[57]). At the national level, judiciaries often have some standards of performance that foster quality, accessibility and timeliness of decisions. National bar associations may also have their own codes of conduct that apply to judges. More challenging to resolve are the questions of how these principles, standards and guidelines can be applied in practice to a system that allows judges to perform accordingly, and how good performance can be measured and encouraged, and by whom.
Overall, it is important to recognise that modern performance management does not focus on exercising control or identifying shortcomings and disciplinary action. On the contrary, it focuses on matching employees’ skills to the right positions, understanding the needs of a particular type of work and of the person assigned to it, creating the conditions that allow the individual to perform to the best of their ability, and tracking performance to understand where assistance may be needed.
Important steps have been taken in Ireland to enhance the clarity and transparency of its performance and accountability system through the Judicial Council Act of 2019, and the related creation of a Judicial Conduct Committee (JCC). The JCC’s first task was to review the draft guidelines for judicial conduct, and it will be responsible for supporting judges in performing in accordance with these guidelines. It will also be responsible for reviewing complaints filed against judges.
Section 7 of the Judicial Council Act sets out a broader range of functions for the JCC to promote and maintain:
a) Excellence in the exercise by judges of their judicial functions.
b) High standards of conduct among judges, having regard to the principles of judicial conduct requiring judges to uphold and exemplify judicial independence, impartiality, integrity, propriety (including the appearance of propriety), competence and diligence, and to ensure equality of treatment to all persons before the courts.
c) The effective and efficient use of resources made available to judges for the purposes of the exercise of their functions.
f) Public confidence in the judiciary and the administration of justice.
These functions outline a combination of issues that include support and resources to perform well (i.e. points c and d), expectations for judicial conduct and behaviour (points b and e), and measures of judicial performance (points a, c and f). All these elements would require further definition for the JCC to be able to support judges and the courts overall in achieving these elements.
At the same time, European institutions such as the CEPEJ and ENCJ are advancing efforts to create minimum comparators of performance for their member states. The ENCJ in particular continues to advance the development of minimum standards regarding evaluation of professional performance and irremovability of members of the judiciary (ENCJ, 2021[58]). The 2020-21 ENCJ report includes on pages 50-53 a revised list of the minimum standards, and sets out detailed indicators for:
These measures are being tested by pilot courts, and initial rounds of surveys to collect this information in member countries have been conducted over the past ten years. These standards could be worth considering when reviewing and advancing Ireland’s performance measurement and data collection goals. Most of the pilot courts are quite advanced in judicial performance management and measurement for judges, and have developed sophisticated systems to track performance. They are also testing and applying a range of performance review measures (see Box 5.8).
In 2004, the district court of Copenhagen carried out a pilot project on the quality of legal opinions and the conduct of court proceedings. A working group defined several quality indicators and conducted a survey measuring at what level these quality indicators were present in both legal opinions and during court proceedings. The survey was carried out by judges from the district court of Copenhagen. The judges set up quality groups, and a representative from one group then reviewed the legal opinions and attended the court hearings of judges from another group.
In the Netherlands, peer review primarily aims to improve the functioning of individual judges, and focuses on behavioural aspects rather than judicial aspects. It contributes to a more open culture within the profession, in which individual performance in the court room can be discussed and improved upon. Peer review can take place in different ways, one being the camera method where the court hearing is recorded and discussed with the judge afterwards.
Source: (ENCJ, 2021[58]) https://pgwrk-websitemedia.s3.eu-west-1.amazonaws.com/production/pwk-web-encj2017-p/Reports/ENCJ%20Rport%20IA%26Q%202020-%202021%20adopted%20GA%202%20June%202021.pdf
The CEPEJ Working Group on Quality of Justice (CEPEJ-GT-QUAL) has studied the different means and tools used in Council of Europe member states to improve the quality of judges’ work. The group compiled this information to provide judiciaries with further guidance to enhance judicial management. Building on lessons learned from studies on effective management in modern organisations, the latest work published by the group focuses on developing the elements that help judges perform well, and on identifying how challenges can be overcome (CEPEJ, 2019[59]).
The nature of judicial decision making as an individual exercise coupled with the tradition of judges working independently from undue influence and in a solitary way has led to solitary working habits, or even to the isolation of judges. Working in teams and exchanging views to learn from others is an important way to continue to evolve as a professional. It is also an effective means to identify potential performance issues and to divert behaviour early on. The group’s report outlines a range of measures that judiciaries can put in place to reduce judicial isolation, such as online and in-person learning and engagement tools including peer exchanges, ways to build work teams around judges, support groups, and positive ethics guidelines, all ultimately geared towards enhancing the quality of judges’ decisions and overall performance (CEPEJ, 2019[59]).
Until recently, judicial training in Ireland had been limited to basic on boarding training and an average two days of continued judicial education per year for sitting judges, which seems limited in comparison to other common law and European jurisdictions. The aim of the new Judicial Training Director within the Judicial Council is to provide an additional five days of training (not necessarily consecutive days), for which the judges will be given leave. The Judicial Institute for Scotland currently applies this practice (see Box 5.9).
Established in 2013, the Institute is responsible for judicial training and education. Materials are managed through the Judicial Hub, an online learning platform, and includes online resources (such as briefing papers and jury manuals), as well as blended or face-to-face learning (such as new office holder inductions and core curriculum).
The Institute is also responsible for engagement with judicial stakeholders and third-party organisations to ensure that judicial training meets present day needs. The Institute has four strategic priorities under which its activities must align:
3. excellence and relevance in course provision
4. excellence and relevance in online provision.
The Institute’s board meets quarterly and produces an annual report. The Institute has also produced a variety of resources for judges on a broad range of issues, such as detailed guidance on selected complex legal issues, the impact of COVID-19, Brexit and the use of remote jury centres.
Source: (Judicial Institute for Scotland, n.d.[60]), Strategic Plan 2019-2020, https://www.judiciary.scot/docs/librariesprovider3/judiciarydocuments/judicial-institute-publications/strategic-plan-2019-2022.pdf?sfvrsn=82f71fd3_4<; (Judicial Institute for Scotland, 2021[61]), Annual Report 2020-2021, https://www.judiciary.scot/docs/librariesprovider3/judiciarydocuments/judicial-institute-publications/jifs---annual-report-2021.pdf?sfvrsn=2df77a34_2.
Internationally, continued judicial education tends to be voluntary, but is frequently combined with a requirement to continue to develop legal and other judicial skills. Judges in Canada are entitled to 10-15 days of training over a four-year period. In England and Wales, at least one multi-day training per year offered by the Judicial College should be attended by each judge. In Australia, judges should be able to spend at least five days each year in professional development, with some flexibility to spend 15 days in training over a three-year period (Judicial Commission of New South Wales, n.d.[62]). In France, continued judicial education aims to provide subject matter expertise and to ensure that judges are trained to effectively the manage courts. Each year, French judges must engage in five days of continuing training, selecting courses from across eight themes, one of which is administration of justice that teaches judges about change management, managing stress, measuring efficiency, etc. All courses are available to judges to self-select, and in 2013, 928 judges voluntarily enrolled in management courses (11.5% of serving judges) (European Commission, 2017[63]).
Across Europe, requirements for judicial training in EU law are increasing. A review of judicial participation in training in EU law indicated great variations across member states, and found a low rate for Ireland, with the percentage of judicial staff participating in EU law related education not reported (European Commission, 2019, pp. 8-12[64]). As a result of this report, and following further consultations, the European Commission presented a new strategy on European Judicial Training for 2021-2014 (European Commission, 2020[65]).
The new strategy sets ambitious targets both in terms of quantity and quality of training (see Box 5.10). Overall, more justice professionals should attend training on EU law, and training providers should improve the EU law training on offer. In terms of quantity, the strategy outlines that by 2024, continued training on EU law should reach the following percentages of professionals per year:
On 2 December 2020, the European Commission presented its new strategy on European judicial training for 2021-2024. The new strategy established the following main qualitative objectives:
Making sure that European acquis on the rule of law and fundamental rights is not only a standard component of basic judicial training, but also part of continuous training.
Embedding “judgecraft”, non-legal knowledge and skills, in the national continuous training programmes, including improving digitalisation and artificial intelligence awareness and skills, and the efficient use of digitalised judicial procedures and registers.
Making sure that every future or newly appointed judge and prosecutor takes part in a cross-border exchange during initial training.
Organising cross-border training activities every year for at least 5% of all judges and prosecutors.
Ensuring that training providers offer tailored e-learning, which is interactive, practical and accessible to all learners.
Encouraging training providers to follow more closely the recommendations in the Advice for training providers (European Commission, 2015[66]) and the European Judicial Training Network (EJTN) Handbook on judicial training methodology in Europe (EJTN, 2016[67]).
Promoting e-training to address justice professionals' immediate needs in the context of a concrete case.
Source: (Wahl, 2021[68]), New Strategy on European Judicial Training for 2021-2024, https://eucrim.eu/news/new-strategy-european-judicial-training-2021-2024/; (European Commission, 2015[66]), Advice for training providers: European judicial training, https://ec.europa.eu/competition-policy/system/files/2021-04/practical_advice_for_training_providers.pdf; (EJTN, 2016[67]), EJTN Handbook on Judicial Training Methodology in Europe, https://www.ejtn.eu/Documents/EJTN_JTM_Handbook_2016.pdf.
To meet these targets for EU law training, the provision of judicial training in Ireland will need to significantly increase (along with training for other justice sector professionals and staff). The EJTN provides many useful resources for EU member states to build upon, and offers a range of courses online and in person, including support for developing judicial trainers. To ensure that these efforts are effective, it would be useful to allocate appropriate dedicated time for judges and others to participate.
5.9.1. Looking ahead: Judicial training needs in Ireland
The Director of Training at the Judicial Council, who is assigned to this position for 50% of working time, and the full-time Deputy Training Director reported extensive collaboration with the EJTN and others, and the aim to build on what is available as much as possible. The Judicial Research Division also reported great interest in supporting curriculum development for judicial training. There is a great need and desire for continued training across all levels, and the need for training of judges at the lower courts is especially high. Many judges from the District and Circuit Courts reportedly took courses during the court vacation given their high workloads and lack of back-up to cover cases during regular court terms, with some District Court judges not being able to attend given that the courses were scheduled during the court vacations of other court levels.
The vision for training delivery in Ireland seems to be moving towards the development of a small core education team and a body of judicial trainers drawn from all court levels through train-the-trainer courses, as well as the use of external judicial training experts and others when feasible. Judges who wish to become trainers themselves will require additional time away from hearing cases. Promoting the involvement of judges as trainers could be incentivised by linking this activity to recognition for future promotions.
The above considerations have important implications for the number of judicial FTE positions needed in the future. Assuming that every judge currently serving (176 judges) across all five court levels in Ireland attend five additional training days during official working hours, this would translate into 4.2 FTE positions needed,8 not considering any time judges designated to become trainers will need.
The training needs across the different court levels will differ as a result of the number of judges who should receive training. A training needs assessment could be conducted as a first step to define priority training needs. As part of the needs assessment, there may also be an opportunity to reflect on the needed skills and competencies for judges and all court staff and how trainings can become a lever for increased efficiency and effectiveness of the justice system as a whole. For instance, one training topic reported as requiring attention is the creation of greater awareness of existing alternative sanctions to imprisonment, for example when dealing with the complex needs of people with mental health difficulties, addiction issues or homelessness. These may facilitate the effective implementation of ongoing policies in relation to community-based sanctions, restorative justice, etc. There are easily accessible resources to determine the training needs of judges available from the ENJC, and others. The training centre at the Judicial Council will require the human resources to use these resources, even while counting on support from others and co-operation with justice sector agencies.
5.9.2. Additional training to foster efficiency and job satisfaction in the judiciary
Several topics will grow in importance to accommodate increasing demands for better court management, such as leadership training for judges, especially as case management and court performance measures, along with greater focus on user needs, are becoming more important in the delivery of justice. Leadership training is not just relevant for Court Presidents, but across all court levels. Strengthening judicial leadership capacities is essential to help prepare those who may be aiming for higher positions and to take on different types of leadership roles, such as list judges, trainers or members of various committees. It can provide judicial input and ensure that knowledge from the assignments is shared with the wider judiciary.
Given that promotion opportunities to higher courts are quite limited in Ireland, there is a need to ensure that there are other options for judges to strive for and to obtain recognition for good performance. This is important to maintain an engaged and satisfied judiciary, to attract new talent, and to ensure that the judiciary evolves as a profession. Becoming a training judge may be one of these options for judges. Box 5.11 provides an example of specific leadership training provided to judges for court presidents in Israel.
The Israeli Center for Judicial Education and Training (CJET) has established a management and leadership development programme for judges serving in senior management positions in the judiciary. The main goal is to support the development of the leadership skills of these judges. The role of court presidents in Israel was officially extended in 2017 to include the responsibility of senior management. Presidents are expected to demonstrate the analytical, leadership and interpersonal skills necessary for routinely managing courts, for evaluating court performance and for long-term planning. For this reason, leadership development and other skills development are included in this programme’s curriculum.
“Management” encompasses all activities carried out by the leadership of an organisation to fulfil the goals of the organisation. The Israeli judiciary has focused on improving judges' managerial skills for many years using personal managerial counselling, managerial coaching and judicial conferences focusing on management related issues. A recent review nevertheless pointed to a need to advance management training suited to the challenges faced by judges in Israel beyond what was available.
Source: (Mersel, 2018[69]), Senior Management Development Program for Judges: Objectives, Principals and Curriculum1 Judge, https://www.ejtn.eu/Documents/Senior_Management_Development_Program_Judges.pdf.
With increased attention and the introduction of more advanced case management techniques across all courts in Ireland, case management training will become essential for all judges. How this training should look will depend on the court level and what will evolve across all courts. However, a general introduction to the range of case management tools will be beneficial. More details on the scope of this training is addressed in Chapter 6.
In addition, wellness training is important for judges and other court staff. The work of judges is taxing in several ways. The impact of criminal cases involving violence, sexual abuse or murder may be more obvious to outside observers, but many more cases involve difficult and fundamental decisions that affect the lives of the parties. These may include those involving vulnerable parties such as juvenile offenders, emotionally distressing family law cases, and employment and business cases that impact the ability of company owners to continue in business and provide work for their employees. The COVID-19 pandemic has only increased the need for a greater focus on health and wellness training and services in all branches of power, including the judiciary. No wellness training programmes are currently aimed at judges, particularly none that focus on stress management or dealing with emotionally challenging cases. There are no programmes that focus on the prevention of health consequences (instead of services that may be available when issues such as depression, substance abuse or even suicide have already emerged). Greater focus on physical and emotional well-being is an important investment to ensure that judges can remain productive, can be retained and that new talent can be attracted.
When case delay and backlog reach a stage that may threaten timely access to justice, there is a tendency to extend court sitting hours, shorten official court vacation times, and limit part- and flex-time options, if available in a jurisdiction. Courts globally have responded with night courts, weekend courts and shortened court vacation times in several jurisdictions. Where flex-time and other part-time options were available, they were suspended as needed. This trend was exacerbated during the COVID-19 pandemic. For example, “Nightingale Courts” in England were set up to manage backlog caused by the pandemic, although triggered substantial resistance from private lawyers in England and Wales who felt that they stretched staff resources beyond what they can deliver (Bowcott, 2021[70]).
Indeed, extending court sitting hours could be helpful to address delays and backlog, while expanding access to justice for litigants who cannot afford to leave work and would prefer coming to court later in the day or on a Saturday. Yet, if the current schedules are expanded and no additional modernisation measures are undertaken to enhance efficiency, they would need to be accompanied by the correlated increase in judicial, prosecutorial and support staff to cover additional sitting times.
As mentioned, the workload study and additional information gathered show that judges at all court levels are currently working extra hours. While some courtrooms are not in use at certain moments, judges and other justice sector officials may be working outside of the court facilities. Therefore, the solution to reducing case delays would be more complex than extending courtroom and sitting hours, and would need to be carefully complemented by innovative procedures and appropriate human resources.
Short-term:
Strategic approach to HRM: Develop a comprehensive, strategic approach to human resource management for the judiciary, including by assessing judicial needs and applicant trends, identifying avenues to continue strengthening judicial skills, attract, develop and retain needed talent, develop effective succession plans and long-term position planning capacities, supported by related action plans. This may also call for assessing the option of introducing a secular alternative to the current form of judicial declaration to foster further ethnic and religious diversity in the judiciary.
Clarity of HRM responsibilities: Enhance clarity of responsibilities for the full set of human resource management processes related to judges to ensure current human resource support for judges is effective across all courts, and future planning is strategically aligned.
Consider standardising and modernizing judicial HRM processes, including selection and hiring, through developing standardised guidance, relevant data, reviewing processes and ensuring sufficient training to those involved. Consider collecting relevant HRM data (sick leaves, vacation days, retirement schedules, diversity characteristics) in a standardised manner across all courts to support decision-making and planning.
Data and analysis for judicial resources needs: Building on the OECD workload study, continue efforts to develop a set of base data that can be fine-tuned to inform the impact of new legislation, new case management practices, changes in caseload trends, etc. on future judicial resource needs, as well as to inform the development of an effective automated case management system.
Medium and longer term:
Judicial workforce planning: Devise a sustainable approach that is able to factor workload shifts in staffing practices throughout the years, such as periodic obligations for the judiciary to report on the judicial resources needs and build capacities in the Courts Service and judiciary to model workloads and provide a staff needs report.
Retirement options and temporary resources: Assess opportunities for adjustments in retirement options to better reflect the current needs of the judicial work environment, and provide flexibility to address temporary resource needs, including for instance senior judge programs as the ones developed in other countries. Exploring the possibility to engage temporary or part-time judges may be an approach to consider, while ensuring appropriate safeguards to protect judicial independence and impartiality.
Training and development: building on the current efforts, consider developing a systematic and comprehensive approach to training and development for judges and staff, in order to respond to various requirements (e.g., EU law training). Consider undertaking a training needs assessment to define priority training needs, reflect on the needed skills and competencies for judges and all court staff and how trainings can become a lever for increased efficiency and effectiveness of the justice system as a whole. Consider the option to link promotion opportunities to higher courts to becoming a training judge, which may have benefits to maintain an engaged and satisfied judiciary, to attract new talent, and to promote evolution of the judiciary as a profession through high quality training.
References
[45] Alberta Courts (2021), , https://albertacourts.ca/.
[37] Appleby, G. et al. (2018), “Contemporary challenges facing the Australian judiciary: An empyrical interruption”, Melbourne University Law Review, Vol. Vol 42/2, https://law.unimelb.edu.au/__data/assets/pdf_file/0003/3159147/01-Appleby-et-al.pdf.
[49] Ash, E. (2021), What retirement policy in US state courts tells us about ageing and productivity in teams, VoxEU, https://voxeu.org/article/ageing-and-productivity-teams-evidence-us-court-judges.
[18] Bellis, J., C. McKinnon and D. Murchie (2015), “Assessing the adequacy of judicial complements”, Journal of Judicial Administration, Vol. 25/2, pp. 67-75.
[70] Bowcott, O. (2021), Covid leading to four-year waits for England and Wales court trials, The Guardian, 10 January 2021, https://www.theguardian.com/law/2021/jan/10/covid-leading-to-four-year-waits-for-england-and-wales-court-trials (accessed on 21 May 2022).
[8] Bunjevac, T. (2017), Transforming Court Governance in Victoria, https://vuir.vu.edu.au/32889/1/BUNJEVAC%20Tin%20Bunjevac%20-%20Theses_nosignatures.pdf.
[44] Burns, I. (2020), Retired judges, universities part of B.C. provincial court backlog response, The Lawyer’s Daily, https://www.thelawyersdaily.ca/articles/20311/retired-judges-universities-part-of-b-c-provincial-court-backlog-response (accessed on 23 May 2022).
[47] Calfornia Courts (2021), Rules of Court, https://www.courts.ca.gov/rules.htm.
[34] Canadian Judicial Council (2021), , https://cjc-ccm.ca/en (accessed on December 2021).
[15] Casaleiro, P., A. Relvas and J. Dias (2021), “A Critical Review of Judicial Professionals Working Conditions’ Studies.”, International Journal for Court Administration, Vol. 12/1, p. 2, https://doi.org/10.36745/ijca.334.
[16] CEPEJ (2020), Case Weighting in Judicial Systems, European Commission for the Evaluation of Justice, https://rm.coe.int/study-28-case-weighting-report-en/16809ede97.
[59] CEPEJ (2019), Breaking up judges’ isolation: Guidelines to improve the judge’s skills and competences, strengthen knowledge sharing and collaboration, and move beyond a culture of judicial isolation, European Commission for the Evaluation of Justice, https://rm.coe.int/cepej-2019-15-en-knowledge-sharing/16809939e4.
[48] CEPEJ (2018), Cycle 2016-2018 for evaluating judicial systems, European Commission for the Evaluation of Justice, https://www.iaj-uim.org/iuw/wp-content/uploads/2018/10/Rapport-CEPEJ-2018-Note-de-presentation-EN-1.pdf.
[24] CEPEJ (n.d.), Gender equality dashboard, European Commission for the Evaluation of Justice, https://public.tableau.com/app/profile/cepej/viz/CEPEJ-Genderequalityv2020_1_0EN/GenderEquality (accessed on 19 May 2022).
[52] Council of Europe (2015), Opinion on the Draft Law on Judges and Prosecutors of Turkey, §47, p.21, Compilation of Venice Commission Opinions and Reports Concerning Courts and Judges, https://www.venice.coe.int/webforms/documents/?pdf=CDL-PI%282015%29001-e.
[29] Courts and Tribunals Judiciary (2019), Pre-Application Judicial Education Programme (PAJE), https://www.judiciary.uk/diversity/pre-application-judicial-education-programme-paje/ (accessed on 14 April 2022).
[56] Courts and Tribunals Judiciary (n.d.), Recorder, https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/judicial-roles/judges/recorder/ (accessed on 19 May 2022).
[42] CSCJA (n.d.), Supernumerary and Retired Judges, Canadian Superior Courts Judges Association, https://cscja.ca/about-us/constitution/supernumerary-and-retired-judges/ (accessed on 23 May 2022).
[32] Department of Justice (2021), , https://www.justice.ie/.
[27] Department of Justice (2012), Government approves in principle a future Referendum on Article 34 of the Constitution, https://www.justice.ie/en/JELR/Pages/PR12000214 (accessed on 22 May 2022).
[40] Department of Justice Canada (2021), Department of Justice Canada, https://www.justice.gc.ca/eng/.
[39] District Court of New Zealand (2022), , https://www.districtcourts.govt.nz/ (accessed on 2021).
[67] EJTN (2016), EJTN Handbook on Judicial Training Methodology in Europe, European Judicial Training Network, https://www.ejtn.eu/Documents/EJTN_JTM_Handbook_2016.pdf.
[6] ENCJ (2021), ENCJ Compendium on Councils for the Judiciary (Adopted 29 October 2021), European Network of Councils for the Judiciary, https://pgwrk-websitemedia.s3.eu-west-1.amazonaws.com/production/pwk-web-encj2017-p/Reports/The%20ENCJ%20Compendium%20on%20Councils%20for%20the%20Judiciary%20-%20adopted%20EGA%2029%20October%20Vilnius%20coverpage.pdf.
[58] ENCJ (2021), Independence, Accountabiliy and Quality of the Judiciary, European Network of Councils for the Judiciary, https://pgwrk-websitemedia.s3.eu-west-1.amazonaws.com/production/pwk-web-encj2017-p/Reports/ENCJ%20Rport%20IA%26Q%202020-%202021%20adopted%20GA%202%20June%202021.pdf.
[7] ENCJ (2019), Recommendation of the ENCJ workshop on the evaluation of judges, European Network of Councils for the Judiciary, https://pgwrk-websitemedia.s3.eu-west-1.amazonaws.com/production/pwk-web-encj2017-p/Reports/ENCJ_conclusions_and_recommendation_workshop_Eveluation_%20Rome.pdf.
[3] ENCJ (2017), Independence, Accountability and Quality of the Judiciary: Performance Indicators 2017, European Network of Councils for the Judiciary, https://encj.eu/images/stories/pdf/workinggroups/independence/encj_report_ia_ga_adopted_ga_13_6.pdf.
[21] ENCJ (2012), Development of Minimal Judicial Standards II, European Network of Councils for the Judiciary, https://www.encj.eu/images/stories/pdf/GA/Dublin/final_report_standards_ii.pdf.
[65] European Commission (2020), Ensuring justice in the EU — a European judicial training strategy for 2021-2024, https://ec.europa.eu/info/sites/default/files/2_en_act_part1_v4_0.pdf.
[64] European Commission (2019), European Judicial Training 2019, https://ec.europa.eu/info/sites/default/files/2019_judicial_training_report.final_.web_.pdf.
[63] European Commission (2017), Quality of Public Administration: A Tool Box for Practitioners, https://ec.europa.eu/esf/BlobServlet?docId=18587&langId=en.
[66] European Commission (2015), Advice for training providers: European judicial training, https://ec.europa.eu/competition-policy/system/files/2021-04/practical_advice_for_training_providers.pdf.
[2] Ferlie, E. (2017), “Exploring 30 years of UK public services management reform – the case of health care”, International Journal of Public Sector Management, Vol. 30/6-7, pp. 615-625, https://doi.org/10.1108/IJPSM-06-2017-0178.
[41] Government of Canada (1985), Judges Act, https://laws-lois.justice.gc.ca/eng/acts/j-1/FullText.html#h-337020.
[12] Holvast, N. and N. Doornbos (2015), “Exit, Voice, and Loyalty within the Judiciary: Judges’ Responses to New Managerialism in the Netherlands”, Utretch Law Review, Vol. 11/2, pp. 49-63, https://doi.org/10.18352/ulr.317.
[11] Ingelse, P. (1996), De Eerbied Waardig? Een Bezinning op de Positie van de Rechter en de Officier van Justitie (Worthy of reference? A reflection on the position of the judge and the officer of justice), https://ingel.home.xs4all.nl/publications/Rechterlijke%20onafhankelijkheid%20heeft%20haar%20prijs.pdf.
[20] Irish Times (2020), ’Irish Times’ view on Judicial Appointments Commission: Minimalist plan for change, https://www.irishtimes.com/opinion/editorial/irish-times-view-on-judicial-appointments-commission-minimalist-plan-for-change-1.4442962 (accessed on 14 April 2022).
[23] JAC (2022), Senior Circuit Judge, Resident Judge (Snaresbrook and Nottingham), Judicial Appointments Committee, https://apply.judicialappointments.digital/vacancy/EUW6VUFQLwb57BM0b5wx/ (accessed on 14 April 2022).
[28] JAC (2021), Annual report and accounts: 1 April 2020 to 31 March 2021, Judicial Appointments Committee, https://judicialappointments.gov.uk/wp-content/uploads/2021/07/Judicial-Appointments-Commission-Annual-Report-and-Accounts-2020-21-July.pdf.
[55] JAC (n.d.), Part-time judicial roles, Judicial Appointments Commission, https://judicialappointments.gov.uk/part-time-judicial-roles/ (accessed on 19 May 2022).
[62] Judicial Commission of New South Wales (n.d.), Continuing Judicial Education Policy, https://www.judcom.nsw.gov.au/education/continuing-judicial-education-policy/ (accessed on 21 May 2022).
[17] Judicial Council of California (2020), The Need for New Judgeships in the Superior Courts: 2020 Update of the Judicial Needs Assessment, https://www.courts.ca.gov/documents/2020_Update_of_the_Judicial_Needs_Assessment.pdf.
[61] Judicial Institute for Scotland (2021), Annual Report 2020-2021, https://www.judiciary.scot/docs/librariesprovider3/judiciarydocuments/judicial-institute-publications/jifs---annual-report-2021.pdf?sfvrsn=2df77a34_2.
[60] Judicial Institute for Scotland (n.d.), Strategic Plan 2019-2020, https://www.judiciary.scot/docs/librariesprovider3/judiciarydocuments/judicial-institute-publications/strategic-plan-2019-2022.pdf?sfvrsn=82f71fd3_4<.
[54] Judiciary of England and Wales (2021), Business and Property Courts: The Commercial Court Report 2020-2021 (Including the Admirality Court Report), Judicial Office, Royal Courts of Justice, London, https://www.judiciary.uk/wp-content/uploads/2022/02/14.50_Commercial_Court_Annual_Report_2020_21_WEB.pdf.
[4] Keilitz, I. (2018), “Viewing Judicial Independence and Accountability through the “Lens” of Measurement and Management”, International Journal for Court Administration, Vol. 9/3, pp. 1-14, https://doi.org/10.18352/ijca.280.
[9] Langbroek, P. (2010), “Organization Development of the Dutch Judiciary, between Accountability and Judicial Independence”, Journal for Court Administration, Vol. 2/2, pp. 21–30, https://doi.org/10.18352/ijca.39.
[19] Law Society of Ireland (2021), Submission to the Judicial Planning Working Group on its Terms of Reference, https://www.lawsociety.ie/globalassets/documents/submissions/2021-judicial-planning-working-group.pdf (accessed on 14 April 2022).
[10] Leeuwen, L. (1991), The judiciary in the Netherlands. Composition and Ideas of the Sitting Standing Magistrates.
[30] Lord Chief Justice of England and Wales (2019), Judicial Diversity Statistics 2019, https://www.judiciary.uk/wp-content/uploads/2019/07/Judicial-Diversity-Statistics-2019-1-2.pdf.
[69] Mersel, Y. (2018), Senior Management Development Program for Judges: Objectives, Principals and Curriculum, Center for Judicial Education and Training Israel, https://www.ejtn.eu/Documents/Senior_Management_Development_Program_Judges.pdf.
[51] Metcalf (2011), Building Bench Strength: Analyzing the 20th Judicial Circuit and Ottawa County Probate Courts’ Workforce, https://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.362.1033&rep=rep1&type=pdf.
[35] National Centre for State Courts (2021), Special Report, Judiacial Retirement, https://www.ncsc.org/salarytracker/special-reports/retirement-map-and-states.
[36] Neilson, N. (2021), Should Australian judges still have a mandatory retirement age?, Lawyers Weekly, https://www.lawyersweekly.com.au/sme-law/31966-should-australian-judges-still-have-a-mandatory-retirement-age.
[38] New Zealand Law Society (2022), , https://www.lawsociety.org.nz/.
[25] Pollak, S. (2022), Census 2022: Insight to modern Ireland must include everyone, Irish Times, https://www.irishtimes.com/life-and-style/people/census-2022-insight-to-modern-ireland-must-include-everyone-1.4834077 (accessed on 14 April 2022).
[43] Province of Manitoba (2011), Province Plans Legislation to Create Senior Judge Program, https://news.gov.mb.ca/news/index.html?item=11054 (accessed on 23 May 2022).
[33] Scottish Government (2021), Judicial mandatory retirement age: consultation analysis, https://www.gov.scot/publications/judicial-mandatory-retirement-age-report-consultation-mandatory-retirement-age-judicial-office-holders/pages/1/.
[22] Smit, J. (2015), The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice, Report of Research Undertaken by Bingham Centre for the Rule of Law, https://production-new-commonwealth-files.s3.eu-west-2.amazonaws.com/migrated/press-release/documents/Compendium%20on%20Judicial%20Appt%20Tenure%20and%20Removal%20in%20the%20Commonwealth.pdf.
[13] Sterk, K. and F. Van Dijk (2016), “Financiering van de Rechtspraak in Rechtsstatelijk Kader (Financing the Judiciary in the Constitutional Framework)”, Nederlands Juristenblad, Vol. 91/24, pp. 1683-88, https://www.rechtspraak.nl/Organisatie-en-contact/Contact/Documents/NJB.pdf.
[46] Supreme Court of Nevada (n.d.), Senior Judge Program Overview, https://nvcourts.gov/AOC/Programs_and_Services/Senior_Judge/Overview/ (accessed on 23 May 2022).
[14] Turenne, S. and J. Bell (2018), The attractiveness of judicial appointments in the United Kingdom: Report to the Senior Salaries Review Body, Senior Salaries Review Body (SSRB), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/748580/SSRB_Report_Attractiveness_Turenne-Bell_Revised_14_March_FINAL_-_temp_pdf.pdf.
[31] UK Parliament (2021), Constitution Committee Lords Select Committee, https://committees.parliament.uk/committee/172/constitution-committee/.
[26] UN Human Rights Committee (2014), Additional responses following Ireland’s appearance before the Human Rights Committee, https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/IRL/INT_CCPR_AIS_ (accessed on 22 May 2022).
[57] UNODC (2003), The Bangalore Principles of Judicial Conduct, https://www.unodc.org/documents/ji/training/bangaloreprinciples.pdf.
[5] Venice Commission (2010), Report on the Independence of the Judicial System: Part I: The Independence of Judges, Council of Europe, https://www.venice.coe.int/WebForms/documents/?pdf=CDL-AD(2010)004-e.
[53] Venice Commission (2007), Judicial Appointments, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2007)028-e.
[1] Visser, M., R. Schouteten and J. Dikkers (2019), “Controlling the Courts: New Public Management and the Dutch Judiciary”, Justice System Journal, Vol. 40/1, pp. 39-53, https://doi.org/10.1080/0098261X.2018.1539645.
[50] Wagenknecht-Ivey, B. and J. Zahnen Cruz (2013), Establishing a Succession Planning/ Talent Management Program, Island of Guam Courts of Justice, https://ncsc.contentdm.oclc.org/digital/api/collection/ctadmin/id/2055/download.
[68] Wahl, T. (2021), New Strategy on European Judicial Training for 2021-2024, eucrim, https://eucrim.eu/news/new-strategy-european-judicial-training-2021-2024/ (accessed on 19 May 2022).
Notes
← 1. See Rechtspraak website, available at https://www.rechtspraak.nl/English/The-Council-for-the-Judiciary.
← 2. See Judicial Appointment Bill, 2020.
← 3. See People Committee online: https://www.scotcourts.gov.uk/about-the-scottish-court-service/the-scottish-court-service-board/scs-people-committee.
← 4. Judicial Office online at https://www.judiciary.scot/home/publications.
← 5. The Council for the Judiciary online at https://www.rechtspraak.nl/English/The-Council-for-the-Judiciary/Pages/Other-duties-and-responsibilities.aspx.
← 6. In response to a well-supported request by the Association of Judges, the Courts Act of 2019 increased the retirement age of District Court judges from 65 to 70.
← 7. According to the latest information shared by the Netherlands in August 2021.
← 8. This calculation is based on the standard judicial FTE calculation accepted by the judges for the purpose of establishing positions needed, i.e. 5 days of training, multiplied by 176 judges = 880 days, divided by 212 standard workdays = 4.15 positions.