The recent hullabaloo about charges of up to £10,000 for raising civil court actions in England reflects a similar policy simmering in Scotland for several years. The proposals currently advertised on the Scottish Court Service website are to develop a pricing strategy which aligns fees with the cost of the service.
Justice is to be provided on exactly the opposite basis from that of the provision of healthcare. Rather than being free at the point of delivery, the user, at the point of delivery, picks up the tab and relieves the taxpayer of the whole cost of the service. This policy has been reflected in a number of increases in recent years of the fees for using the Scottish courts.
The decision as to whether the state or the user should finance the courts is perhaps one that should be made in clear daylight by parliament rather than under the cover of a non-elected government agency, such as the Scottish Court Service.
It seems intuitive that a state has at least as much responsibility to provide a justice system as a health system. While nothing can detract from the greatness of the aspiration and of the achievement of our own National Health Service, it is not clear how the state has acquired a responsibility to provide this very wonderful benefit. It seems clear, however, that, in making the laws, the state has a direct responsibility to provide for the administration of those laws.
It should be borne in mind also that the vast majority of the users of the justice system do so in the context of criminal prosecution. The whole profile of buildings, staff, equipment and judiciary are therefore in place by necessity and the cost of the civil justice system can only be a very small fraction of the total budget.
Also, a huge proportion of users of the civil justice system are financed by legal aid and public authorities such as the health service and local authorities tend to be very frequent users of the system. The imposition of charges based upon the cost of provision would result largely in pushing public money about.
Apart from these practical considerations, it has to be acknowledged that the state and the public are also significant beneficiaries from the civil court system. This is because, whatever words the legislators may commit to statute, the law exists only when it is applied to the specific circumstances of cases brought to the courts.
For decades after the Companies Act was written, the extent of receivers’ liability for the employment of staff employed by companies while in receivership was crucially misunderstood. This was eventually determined in the courts and the insolvency industry incurred a huge liability for those decades of unpaid wages, redundancy entitlements and other costs. Court cases can sometimes even perform the role of legislators, such as when the House of Lords decided in 1932 that a manufacturer was liable for allowing a dead snail to contaminate a bottle of ginger beer. This finding was directly opposite to previous judicial decisions and operated in the same way as new legislation.
The policy of charging users for the cost of the service seems inconsistent with competition. The normal protection against overcharging is the prohibition of anti-competitive practices. That is a protection which would be glaringly omitted from the provision of court services which, by necessity, are the monopoly of the Crown. Does the current policy in fact point towards the privatisation of the court service and competition between alternative service providers? Would such service providers be entitled to maximise the potential for turning a profit out of the operation? It seems obvious that the state, as the maker of the laws and with its responsibility to protect society against criminal activity and as a principal beneficiary on behalf of the public of the civil court system should, through the taxpayer, have the main responsibility for the provision of the civil court system.
• Michael Sheridan is secretary of the Scottish Law Agents Society www.scottishlawagents.org