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A seismic shift is taking place in our justice system which will radically affect the public’s access to our courts.  It’s a change that has crept up on all of us, the public, the legal profession and even MSPs, without the issue ever being properly aired or debated in the Parliament.  The fundamental shift is that we are to no longer to see our justice system as a public service provided by the State for us all but instead one founded upon the ability to pay and therefore more available to those who can pay. 

The shift has now reached a point where the State only funds 30% of the costs of our courts, staff, buildings and technology.  The remaining 70% is to be met by any of us who have to use the courts.  The stated objective is to get this up to 100% payment and completely withdraw the State from the funding of the courts.  This is designed to dovetail with the Gill Review, now reported to Parliament, and which will be under consideration in 2010 and 2011.

Yet although the issue of increasing the level of payment has been debated in the Justice Committee, the principle of full payment has not been debated anywhere.  It has never appeared in any manifesto, nor been the subject of any primary legislation or even a debate in the Parliament.

We as a society accept that the cost of the provision of health and education should be borne by the State.  This is because all must have access to them irrespective of ability to pay.  They are seen as a pre-requisite of a fair and democratic society.  We also, in any event, recognise that a healthier and better educated population benefits us all.  Justice used to be regarded in the same way.  Our judges were there for us all, irrespective of our ability to pay.  That was fair.  In addition we recognised that we all benefited from adjudications, determinations, clarifications and confirmation of our rights.  To not have a civil justice system would give rise to exclusion, discontent, frustration, anger or even oppression of one against another in various sections of our society. 

Now we must put aside such notions and countenance a pay-as-you-go type of justice.  Inherent in this justice is a market philosophy.  As in the market, just as we may choose other goods and services, it will be said that we can choose to go to court or not.  In making such a choice, we have to recognise that we have to pay for such goods and services.  However this contains a fallacy.  If we go to court, it is not a matter a choice.  We have to go to court to comply with the law, vindicate or defend our rights.  In the context of our rights, we have no choice.  To not be able to do so would mean that we in fact may be forced into, at worst, doing something unlawful which otherwise had to be sanctioned by the court or doing nothing which is tantamount to us having no rights whatsoever.  The idea of choice also contains a second fallacy.  A market must have a choice between goods and services in terms of suppliers or providers.  We would not say that we had a choice faced with a monopoly.  Yet that is what exists in our justice system.  The State, despite not paying for it, has a complete monopoly on our system of justice and therefore its provision and pricing.  That puts it in an abusive position and removes it from being a guarantor of our rights to being the determinant of our rights on the basis of payment.

All of this means that when you have to go to court, whether it be for the custody of children, as a consequence of the death of a loved one, for recovery of goods, for payment of a debt, to keep a roof over your head and so on, you will only be able to do so in so far as you can pay.  If you cannot pay then the civil justice doors will be shut.

The Scottish Government will of course say that there are exceptions which mainly mean those who qualify for legal aid will not have to pay.  But such a concession for legal aid is not a concession.  All the State is doing is the obvious.  It cannot require payment from someone who is funded by the State anyway.  Legal aid is also only available on strict financial limits and even apart from these limits is not available in many cases in any event.  Most of us would not qualify for legal aid and would be required to pay.  However for the Government to point to exceptions as the answer is to somewhat miss the point.  For example, we would not agree that accountability for the transgression of our rights on the basis of creed, colour, sex or race should depend on the victim’s ability to pay.  To allow the potential for even just one perpetrator to avoid responsibility for their actions because the victim could not pay is one too many.  Yet while our courts may not be available for such a case they will be available (as they should be) for a case of relatively little public concern such as an acrimonious boundary dispute.  This case might instead easily have access because for the proprietor money is no object.  The ability to pay rests on money but may have little, if anything, to do with the substance of the rights in question. 

There is however one massive exception, scarcely mentioned by the Scottish Government, and that is the State will still fully fund our criminal justice system.  This is not to say that it should not do so but just that it is difficult to see how that can be the case but not for civil justice.  For example, an accused charged with careless driving for killing your spouse or partner will go through the courts not having to pay a penny.  You, however, in taking a civil case, and basing it on their negligence, to obtain compensation for the loss of a breadwinner will have to pay the State for doing so and carry the risk of paying the other side’s payment to the State as well if you lose.

Once the 100% goal has been achieved, what then?  In presenting the pay-as-you-go-system, the Scottish Courts Service spoke unashamedly of the civil courts system as a “business”.  Business as we all know means “profit” (and to achieve this higher prices and even more exclusion).  The signs are already there.  It is interesting, for example, that in the Arbitration Act, there is now a provision for hiring out our judges to do arbitrations.  Indeed the arbitration may have nothing to do with Scotland.  In this new business approach our judges will become reduced to becoming part of its marketing campaign

To borrow a well known bus metaphor for lawyers (the man/woman on the Clapham Omnibus which was a test to ascertain what the reasonable person would think) a person on the civil justice bus will now have to pay for the bus, the driver, its maintenance, the routes and the petrol.  Perhaps in the face of this they may never get on, or have to get off.  He or she may find that ultimately the bus will not pass through their area and be assigned to much more profitable routes. 

Is it not time for this all to be discussed in public and in our Parliament instead of creeping changs laid out in, what are to many, obscure civil servant documents followed by underhand technical orders?  We may otherwise end up one day wondering what happened to our justice system and whether the price of abandoning fundamental principles of justice and adopting a market philosophy was really a price worth paying.

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