Wednesday, 29 May 2013

Privatisation of the courts?

One of the key prerogatives of the Crown is the right to dispense justice.  We have the Royal Courts of Justice in the Strand.  Our judges and magistrates sit under the Royal Arms signifying that they dispense justice according to law on behalf of the Crown.  In Magna Carta it was asserted that - 'We will sell to no man, we will not deny or defer to any man either Justice or Right.'  Little else of that great feudal charter remains but those famous words - a part of the birthright of the British citizen - have resonated down the centuries and, I hope, still remain a fundamental element in the compact between the people and those who govern.  Increasingly, in these modern times with huge economic challenges, it seems that the desire for commercialism is pushing aside such old constitutional principles. 

The previous post 'Money, money, money ...' referred to a report in
The Times (28th May) that the government was considering privatisation of the courts.  It was reported that the government would 'establish the courts as a commercial enterprise, paying its way and freed from Treasury control, with court buildings and thousands of staff put in the hands of private companies.'  To counter fears of judges that privatisation would erode judicial independence, the courts would be placed under a Royal Charter - as proposed for regulating the press.  The article offered no clues as to what might be in such a charter.  Former Lord Chancellor, Lord Falconer, said that he favoured making more money from commercial court users and also favoured requiring those who commit crime making a bigger contribution to the courts but Falconer was not in favour of privatisation.  'The courts should not be beholden to any private provider because the courts have to be independent of every interest.'  Judges should not have to negotiate with private contractors over whether, for instance, a court can be open on a Saturday for an emergency injunction' and such control was not compatible with independent justice.

Of course, a perhaps simplistic answer to Falconer's point about opening of courts is that provision for emergency hearings could be built into any contract(s).

The Chair of the Bar Council, Maura McGowan QC, was reported as saying that the 'courts are so much part of the justice system that they ought, in a proper society, to be administered by government as a public institution, just like the health service.'  The comparison with the health service - which is far from being problem free - may not necessarily prove to be all that helpful.

It was also reported that Slaughter and May - one of the City "magic circle" law firms was involved in drawing up proposals as well as management consultants McKinsey.  Costs for such work were not mentioned.

What else was in The Times article?  A statement that fines and fixed penalties would provide another multi-million pound economic stream.   No further detail here but it has been repeatedly reported that millions in unpaid fines remain to be collected - e.g. approaching £2bn owed - BBC 20th March 2012.  This ought to be a clear priority for the Ministry of Justice (MoJ).

More court closures will be coming: between 80 and 100.  Plans have already been drawn up by HM Courts and Tribunal Service in discussion with senior judges led by the Senior Presiding Judge Lord Justice Gross.

According to The Guardian 28th May, the MoJ denied this privatisation story or, more precisely, denied 'wholesale' privatisation.  The article states:

The Ministry of Justice has dismissed claims that is actively considering "the wholesale" privatisation of the courts service as part of a radical review to save funds.  While confirming that civil servants are looking at ways of improving the efficiency of the HM Courts and Tribunal Service (HMCTS), the MoJ denied that it planned to outsource all court buildings to a private contractor.'

In The Guardian today (29th May) barrister Sarah Vine wrote Privatising the courts system: the public are not customers, they are citizens

This article says that 'Her Majesty's Courts and Tribunals Service is not an enterprise, designed for the pursuit of profit. The very idea is repugnant.'  Vine makes a good case and I urge you to read it. 

The public are not "customers". They are citizens, and are entitled to public, accountable justice, administered without fear or favour; no sale of justice or right. If the insertion of private interests into the administration of justice did not offend against that principle, it would have been achieved by now.'

Vine sees the impartiality of court staff being affected -'even a fool could grasp the imperative to protect their impartiality' - 'pay people less, erode their job security, and ask them to serve two masters, and you cannot be surprised if they choose the one holding the purse-strings.'

Vine also sees the possibility of high fee paying litigants demanding preferential treatment.  'It will start with queue-jumping, and judge selection. And perhaps the contract-winning companies (....) will be more than happy to instruct their staff to oblige.'  She concludes by saying:

'The tide of privatisation inches closer to the heart of our justice system by the day. Security, probation, transport and interpretation services are long gone. G4S provide child-abuse investigators and rape recovery suites, for profit. Legally-aided representation is in the MoJ's cross-hairs. If Grayling has his way, the only heads left above the corporate water will be the judges. For a while, at least.'

Let's bear in mind that we have not (yet) seen any specific proposals.  There are undoubtedly financial gains to be made by some reforms and by more effective collection of penalties but the idea of privatisation of the courts is a major step too far and appears to be put forward out of political dogma that commercialism is always desirable.  Inevitably, it will place the emphasis on profit.  It is likely that the independence of court staff will be affected adversely and, through the intricacies of administration, the ability of the judiciary to control the Queen's Courts (which they may not then be ?) will be impaired.  That comes very close to an attack on the very independence of the judiciary which is a jewel beyond compare in a democracy.

For a contrary viewpoint see Law Society Gazette - John Hyde - What is so bad about privatising the courts?   Hyde argues that court premises and infrastructure could be improved as well as achieving better administration. 

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