Republic has lowest budget for judicial system in Europe, report finds

State close to bottom of list for numbers of professional judges per 100,000 of population

Chief Justice Frank Clarke  has made access to justice one of the themes of his tenure as the State’s top judges. Photograph: Brenda Fitzsimons

Chief Justice Frank Clarke has made access to justice one of the themes of his tenure as the State’s top judges. Photograph: Brenda Fitzsimons

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The Republic had the lowest judicial system budget as a percentage of gross domestic product (GDP) of the 48 states covered by a new report from the European Commission for the Efficiency of Justice (CEPEJ).

In 2018 the Republic spent 0.10 per cent of GDP on its courts, prosecution service and free legal aid system, the report found. The average was 0.33 per cent.

The figure for Northern Ireland was 0.45 per cent of GDP, one of the highest ratios contained in the report from the Council of Europe body.

Ireland’s GDP figure is hugely boosted by the size of its foreign direct investment sector.

The report from the commission (usually referred to by its French acronym CEPEJ) covers 45 of the Council of Europe member states (Liechtenstein and San Marino are not included), as well as Israel, Kazakhstan and Morocco.

The three UK legal jurisdictions of England and Wales, Scotland, and Northern Ireland, are treated separately in the data.

Similar ratios

The report found that the Republic was an outlier in terms of judicial system budget expenditure per capita, when GDP is taken into account. It fell significantly below the trend line that indicates similar ratios.

The Republic was also close to the bottom in terms of numbers of professional judges per 100,000 of population (3.3). England and Wales had 3.1 and Northern Ireland 3.6.

The ratio of women in the judiciary was below 40 per cent in the Republic, the three UK jurisdictions, as well as Armenia, Azerbaijan and Iceland.

The report found that the Republic’s “clearance rate” was the second lowest (63 per cent) of the court systems examined in the report in civil and commercial litigation in courts of first instance (ie not appeals), and the lowest of all EU states.

The clearance rate is defined as the ratio obtained by dividing the number of resolved cases by the number of incoming cases in a given period, expressed as a percentage.

It is designed to assess to what extent a judicial system is able to process the volume of cases it is receiving, with a ratio of more than 100 per cent indicating that the system is able to reduce a backlog. The average reported clearance rate in the report was 99 per cent.

In continental Europe, the progress of a case is more in the control of the courts than it is in the Republic, where the pace of progress is more in the hands of the parties before the court.

The report found that countries with higher per capita GDPs tended to spend a proportionately larger amount of money on legal aid.

Unnoticed difference

An analysis of spend per capita, with GDP taken into account, showed that the spend in the Republic was slightly higher than its GDP would forecast, using average spend as a guide for those countries that had GDPs in excess of €20,000 per capita.

The Chief Justice, Frank Clarke, who has made access to justice one of the themes of his tenure as the State’s top judge, has spoken frequently about the important but frequently unnoticed difference between common law legal systems, such as what exists here and in the UK, and the civil law regimes that are usual on continental Europe, in terms of public expenditure.

For instance, at the opening of the new legal term in October 2017, he said there was a significant shifting of the burden of carrying litigation in common law countries on to the parties and away from the State.

“In civil law systems the courts themselves, that is judges and judicial staff, carry a much greater burden of ascertaining the facts and researching the law.”

But that came at a cost in terms of the much greater numbers of personnel required to staff the courts in those jurisdictions, he said.