The Times, May 28 scooped the story. If not subscribed to The Times Online, the reader should turn to Ben Bryant of the Telegraph to pick up the storyline, and Owen Bowcott of the Guardian who digs deeper into the Ministry of Justice denials.
The story turns on possible saving to the Ministry of Justice of £1 billion per year from the ‘wholesale privatisation’ of the courts, freeing them from Treasury control. Private investment and means-tested payments would relieve the taxpayer of a long standing burden.
Sarah Vine of the Guardian also enters the fray, fingering the velum of the fourteenth century Magna Carta, and concluding, “If Grayling has his way, the only heads left above the corporate water will be the judges”.
Whilst the media focus is understandably on the prospect of corporation such as G4S running the court service – and in time perhaps even employing the judges – this blogger is more interested in the imminence of something more subtle.
The state has never run a monopoly on the provision of justice, only – until fairly recently – on the appointment of judges. Their offices would historically follow revenue, and would be granted to those who supported the monarch. Sixteenth century barrister Matthew Shardlake, in CJ Sansom’s ‘Heartstone‘, gives a graphic description of the judges of the ‘Court of Wards and Augmentations’. These were the courts that dealt with wardship (our modern day Family Courts). After the Dissolution of the Monasteries and the seizure and selling of monastic lands, the old ‘Office of Wards’ was abolished and replaced by the Wardship court. These checked the value of lands subject to wardship, and the feodaries negotiated with applicants for the wardship, and land, of minor heirs. Some were granted to the children’s families, but where substantial money was involved, others would be awarded to the highest bidders. “Wards and Augmentations are still sitting”…the courts that brought revenue to the King… would sit all summer”, observed Shardlake.
Justice has always been the younger brother of money, whether in the hands of the client, the lawyer or the state.
The blogger senses that the issue that most concerns government is not the running of courts, but the sheer scale and cost of public justice.
Hiving off the court buildings and administration to the private sector could undoubtedly result in savings – you only have to look at prisons to see this. It could also result in a better service deal for court users. How often as clients or advocates have we wasted hours, or even days, in waiting ‘our turn’ in the overstretched court list before a judge who is expected to react to information given to him or her on the morning of trial? The private sector could not get it more wrong.
The real point of reform is that the public in fact ends up underwriting the cost of everyone’s disputes, no matter how unreasonable. The court ‘issue fee’ no way reflects the cost of running the court and paying for the judges. For genuine civic disputes, this is a bearable social cost. But for private disputes, arguments concerning spousal assets, and company and commercial disputes, the subsidy by the public is unacceptable.
Recently retired Lord Justice Sir Alan Ward summed the problem up perfectly in a noisy floor dispute, “Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator. Give and take is often better than all or nothing”.
As other systems are available, why should the taxpayer fund the big-money divorce, the bankers’ dispute or the noisy floor? Yes, the litigation costs of these cases are enormous, but solely to pay the lawyers bills rather than the judges’ salaries and the public cost of running a court.
The government’s agenda is to shed as much work from the state court system as possible. These days, courts clearly do not pay.
There is, of course, the minor problem of Article 6 European Convention of Human Rights, providing “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. Perhaps this too is an underlying reason why some politicians are keen for repeal.
So, the blogger will forecast the next steps.
Commercial, company and most civil disputes will be directed towards arbitration, mediation and expert determination at first instance. These processes will be the ‘gate keepers’ for entry to the courts. The ‘reasonable time’ for determination of a dispute will run from the point where the alternative resolution mechanisms have been exhausted.
Likewise, family disputes involving children and money will be referred to alternative dispute resolution – where most will be expected to be solved. Only then, and on sanction of costs, will the courts intervene. The Family Court experiment with public law cases will flounder in delays exceeding 26 weeks and be replaced by tribunals.
Criminal cases will be handled by increasing use of community resolution processes, such as self-referral, the acceptance of voluntary penalties and restorative justice, offenders knowing that these will deliver the best deals. Only the hardened criminal for whom prison is inevitable will the door to the dock opened.
Of course we will still pay for the judges, but a slimmed down bench, with reduced pensions, and the small accompanying coterie of cut price lawyers will be cheap in comparison.
Perhaps Justice Secretary Chris Grayling has a point…..?