Like, I suspect, most lawyers, I was very pleased to read what the Lord Chief Justice Lord Thomas had to say last week about the relationship between the courts and the State.
For those who missed it, Lord Thomas, giving the Michael Ryle Memorial Lecture in the Palace of Westminster, pointed out (amongst many other matters) that courts are not ‘a provider of consumer services’. To quote him a little more fully, he said:
“…there is an insufficient understanding of the centrality of justice to the functioning of our society. I have spoken of this on other occasions, but one illustration of the lack of understanding is the characterisation of the courts as being service providers akin to a utility like water supply, of litigants exercising their constitutional right of access to the courts to vindicate their rights, to being consumers who, like any other consumer, must pay for the service they receive. Indeed … contemporary discussions that focus on the idea that they are service providers that operate on a pay‐as‐you‐go basis is one that, as Lord Scott of Foscote noted some time ago now, ‘profoundly and dangerously mistakes the nature of the (judicial) system and its constitutional function.’”
He went on:
“What has been needed, and still is needed, is an understanding by all that the judicial branch is just that: a branch of State, and, crucially, the branch that with Parliament secures the rule of law. As such it cannot be confused with, or referred to as, a provider of consumer services. Equally, there cannot but be a proper recognition that it should be funded properly by the State, just as Parliament is properly funded, so that the State can discharge its constitutional function effectively, efficiently and equally.”
These are very timely words, which urgently need to be taken in not just by those in government, but also by those who comment about the courts system. For some time now there has been a flow against the courts, coming both from above and below, undermining, purposely or not, the independence and authority of the courts. The time has come to stem that flow.
I’ll be generous towards the government and say that this view of the courts as providing a consumer service may well stem from the financial constraints under which (almost) every arm of government now has to manage, rather than from any anti-justice policy. The idea of court users being expected to pay (in full) for the service that they receive must have been very alluring to government ministers seeking to save money.
However, we have seen in the area of family law how rising court fees (combined with the abolition of legal aid, another measure driven by economics) have the effect of denying the less well-off access to justice. But access to justice is not a luxury product, which is naturally only available to those with money. Access to justice is a basic right of all citizens, irrespective of means.
It cannot have helped that, since 2012, we have always had a Lord Chancellor who is not a lawyer. Now, I’m not saying that the Lord Chancellor must be a lawyer, but it must surely be harder for a non-lawyer to fully understand the role of the courts in our society, and to understand the need to maintain a level of independence, rather than being at the beck and call of their colleagues at Westminster. It is no coincidence that the ‘consumerisation’ of the courts has happened, or at least accelerated, under the watch of our non-lawyer Lord Chancellors.
And it is not just the less well-off who are affected by the consumerisation of the courts. It affects all of us. If a whole section of society is denied access to justice then that undermines society as a whole. This operates not just in a general way in the sense of ‘fewer rights=second-class citizen’, but also in a specific way. If, for example, someone in an unhappy marriage can’t get divorced because they can’t afford the court fee (as I have witnessed myself), then that person’s life is blighted, possibly for years. If a wife can’t afford to take her husband to court to get the financial settlement she is entitled to, then she will suffer hardship, and may have to rely upon the State for support. And if a father can’t get contact with his children because he can’t afford to make an application to a court then that is a disaster not just for him, but more importantly for the children.
We need to back away from this idea that the courts are providers of consumer services, and we need to do it quickly. Let us just hope that our new Lord Chancellor, and his colleagues in government, are listening.
You can read Lord Thomas’s full lecture here.
Photo of the Palace of Westminster by Nick Bramhall via Flickr under a Creative Commons licence.