The government is right to be thorough in its determination to cut waste and excess in public services, and achieve greater efficiency, particularly in the current economic climate. However, the news that this quest may lead to further privatisation in our courts is troubling.
Reports have suggested that court buildings could be privatised. This might be worth considering if we could guarantee improved infrastructure and much better IT. By the same token, if privatising court staff meant an improved service and greater efficiency, why not consider it, as long as there are sufficient safeguards for the integrity of the court process, judicial function and access to justice?
There are very good reasons why not. The most fundamental reason is our expectation of justice in a civilised society. On a much more practical level, the record to date on privatisation of some court functions is woefully poor. The privatisation of the court interpreters service has been a disaster – far from delivering improvements or savings, we have seen ongoing failings. There continue to be problems with other outsourced contracts, such as for the prison service. The private sector does not offer an automatic panacea for all perceived ‘problems’ in the public sector.
Our society is underpinned by the rule of law, the principle of access to justice for all and the independence of the judiciary. The suggestions for change that have been publicised so far seem to indicate that end-users will fund the court service. This undermines the fundamental principle in a civilised society of everyone’s right to equal access to civil courts. Those with limited means may find themselves further excluded from access to justice. At the other end of the spectrum, those with deeper pockets able to fund the system they choose to use would end up paying more.
It seems that the higher fees being advocated are aimed at overseas litigants, just as the government has announced wholehearted support for the efforts of TheCityUK to encourage the international community to have their disputes resolved in London. TheCityUK, and the government, want to see London expand as a centre for international litigation and dispute resolution. This being the case, the proposal to impose much higher fees on well-heeled overseas litigants wishing to use our courts seems counter-productive.
These litigants already provide substantial fees to the law firms they instruct which, in turn, employ people and pay tax, providing a significant portion of the legal sector’s contribution to government coffers. Perversely, as with corporation tax, we are in danger of driving international litigants into the hands of competitor jurisdictions.
At first sight the reported proposals seem not to affect the judiciary, whose independence is crucial to the reputation of our civil justice system. However, there would appear to be a naive understanding of how our courts work. The scope for conflict of interest is a real concern. Even if the independence of the judiciary itself can be safeguarded, judges do not work in a vacuum.
As a result of changes in functions and cuts, many senior court staff take on quasi-judicial functions on a daily basis. Even administrative decisions by court staff on issues such as listing have an impact on the day-to-day administration of justice. Under proposals reported, these people could be working for private companies, eroding their independence and putting the integrity of the court system at risk. This is the thin end of the wedge.
The MoJ must take on board the strength of reaction and the serious concerns being raised in light of these reports. If not, we may just be a short step away from sponsored courts – the Rolls Royce building or Thomas More Than building, or from the priority system operated by budget airlines, where those who pay more could get their cases heard sooner and by a court of their choosing.
Francesca Kaye is president of the London Solicitors Litigation Association