Article by Frank Maguire, Senior Partner for Scotsman Newspaper 7th April 2008.
Lord Gill, the Lord Justice Clerk is currently heading a review of our civil courts system, which is supposed to ensure that the civil justice system continues to provide an effective and efficient service for any individuals, families, communities and businesses who have cause to use it.
But by the looks of the consultation paper recently issued together with other developments going on with regard to the civil courts, the eventual prescription will not be a dose of medicine for the patient but surgery so radical the patient is unlikely to survive, at least in a recognisable form.
The first problem is that the review is judicially led. That, on the face of it, may seem unsurprising. However here the judges are not performing a judicial function in assessing evidence and applying the law but reviewing our civil courts system. They will be coming to conclusions as to what the priorities are and therefore where resources should be applied. They have no greater claim as to the priorities and resources to be applied to our courts system than any of us. Indeed, if they are doing so then they are stepping into to what is essentially a political process. It may be said however that judges have experience of our courts and would, understandably, have something to say about it. They however do have limitations. Their background as lawyers and then judges which involves legal skills, commitment, intellect (and, at times, inexhaustible patience) does not necessarily however qualify them in operational or administrative matters such as running a business or an organisation.
We should also be mindful that judges who will be presiding over a court review will inevitably have their own perspective. Judges, while intrinsic to our civil courts system, are not the only ones.
Another characteristic of a judicially led reform that one would expect would be an open and balanced approach to reform. As the review progressed, certain structures became apparent: a Project Board (all judges), a Policy Group (also consisting of some judges) and a Review Team. Half of the Policy Group are employed by the Government. We are not told as to how those on these groups or teams came to be selected or why, for example, the Faculty of Advocates and the Law Society of Scotland were not.
There is a group which does appear on the Policy Group and that is the Scottish Consumer Council. The Consumer Council, quite rightly, promotes the interests of consumers. They are a lobbying and campaigning group. It cannot be said that someone who does not have a roof over their head, whose loved one died in a fatal works accident or of an industrial disease or has problems with, for example, adoption or a relative with mental health problems can, by any stretch of the imagination, be called consumers. But they are the very people most in need of access to our courts and They also have in any event, to varying degrees, their own organisations to represent their interests. It has not been explained to us why the consumer lobby is given this privileged position. The impression of course is that those leading the review favour, or are certainly giving the impression that they favour, what that particular lobby has to say - what is good for consumable goods is good for everything else.
In addition, there is considerable discussion about the plight of commercial cases. There is a clear intention to improve commercial actions to retain the business of companies in Scotland. However an Expert Group has also been recently announced by the Cabinet Secretary for Justice called The Business Experts and Law Forum which has as one of its goals the improvement of our legal system so that businesses choose Scottish legal services, use our courts to litigate and for dispute resolution if necessary. This latter objective may mean that we deal with cases that have nothing to do with justice but instead use our courts system as an international commercial commodity. Significantly there is, however, nothing said about workers in Scotland. Many of them are represented by trade unions and other organisations. One would have thought that organisations which see the primary objective of our civil courts as the health and safety of workers and when they are injured, ensuring they have 100% of damages (as opposed to reductions of up to 30% by claims companies) would be something that is good and should be fostered and promoted. Trade unions have, for decades, been major stakeholders in our civil justice system. They only merit a passing mention in the review.
Then there are the guiding principles of the review. The principles which will apply to allocation of resources to a case will be in accordance with its value, importance and complexity as against cost. The decision, of course, as to how we juggle these principles in any future system will be left to judges. But any civil court review should rest first and foremost on the rights which we accept as underpinning our democratic system, that is the rights contained in the European Convention of Human Rights and Fundamental Freedoms. The Human Rights Act 1998 enabled these rights to be pursued before our own courts. Our civil courts system should reflect these rights and our judges should be there to address them (irrespective of what they consider to be the value, importance or complexity of a particular case as against cost). The right to life is a fundamental provision of human rights and so therefore is the protection of life. The right to property and possession, while important, is not so regarded. Curiously, there is no mention of them on the consultation paper. There seems to be no reference to the word "right" at all.
By the time the civil courts review has come up with its conclusions, the prescription for our civil court patient will not end there. The Scottish Courts Service, as stated in its recent consultation paper, intends to ensure that whoever uses this new court system will require to pay for it - 100%. For example, a judge will cost as much as £2500 per day. This is, of course, the logical conclusion of the consumer model for our justice system. We are also told that the rights which we have been exercising, some of them for centuries, have relied on a subsidy from the government and we now need to be weaned off this subsidy. This is, of course, the antithesis of a rights based system. It is the duty of our society, and of our government, to provide courts and judges so that we can pursue our rights. That does not, and should never, depend on who can pay and who can not pay. Universal access to our courts has been a constitutional right at common law and in case we need reminding, it is also what Article 6 of the European Convention of Human Rights upholds. If we no longer have this right, not only will the State not be acting in accordance with the values which we expect, it itself will be transgressing one of the very rights it pretends to otherwise uphold.
So what is the prognosis? By handing over review of our civil courts system to judges, allowing judges to decide what is to go where, treating our legal needs as consumable goods, turning our system into a commodity all as against our most fundamental rights, we are in danger of delivering a radical surgery which may cripple one of the proud characteristics of our Scottish society - our legal system. It will be in danger of being seen as essentially administrative, money driven and a haven for those who have nothing to do with it. The ultimate irony is that it will also itself have become unlawful.
Thompsons response paper to consultation paper on the civil courts review