The Scottish Government launched its much anticipated consultation on the Courts Reform Bill last week, as part of its ‘Making Justice Work’ agenda. One of the overriding principles of that agenda is improving access to justice. Given the contents of the 47 page document and the terms of the proposed Bill, it seems likely to have the opposite effect. The proposals contain alarming signs of an attempt to make Scottish judges subservient to the will of government. The proposals also favour the interests of government and big business over those of the ordinary citizen.
We have known since the publication of Lord Gill’s Scottish Civil Courts Review in September 2009 that the Scottish civil justice system was in line for a radical shake up but the Scottish Government’s consultation paper goes even further. This is very disappointing and deeply dispiriting. In essence it is saying Scotland can no longer afford top quality civil justice for the vast majority of its citizens. Beneath a flimsy veneer of ‘efficiency’ and ‘accessibility’ the main objective – cutting the cost of civil justice – would appear to be brutally clear.
Amongst the most blatant steps is the creation of a ‘cut price’ fifth tier of the judiciary – judges, to be known as summary sheriffs, who will be expected to do most of the work of existing sheriffs but for a considerably lower salary. Meanwhile the Court of Session, recently refurbished at a cost of millions of pounds, is to be emptied of most of its work.
Lord Gill’s review recognised that if personal injury cases, which make up the largest proportion of civil cases in the Court of Session, were to be largely removed from that court, the legal expertise available should be focused in a new all-Scotland personal injury sheriff court. However the Scottish Government’s proposals do not guarantee that this court will be set up or when, nor do they suggest that the existing expertise among the legal profession to represent clients will be retained. In the Court of Session, expert representation from solicitor advocates and advocates is guaranteed. Importantly, if you win your case, the other side is normally bound to meet the cost of that representation. These proposals suggest that unsuccessful parties will not be made to pay that cost. This favours insurance companies, banks and the government itself, who will be able to afford to instruct the best lawyers win or lose. Ordinary citizens will effectively be forced to pay for that expertise win or lose, or alternatively choose less expert lawyers. This would build inequality of representation into the court system, which threatens the impartiality of the courts.
Tinkering with something as valuable as the basic right to civil justice is a dangerous game and getting it wrong could have serious consequences. The proposals published last week appear to be the result of some misguided cost cutting exercise and leave me wondering whether the Scottish Government has really thought the proposals through.