Who cares if the courts are shut?

Why should anyone be bothered if the civil courts are shut?  It’s only a few unreasonable people who benefit from them anyway, right?  Wrong. There’s a real imperative to maintain the administration of civil justice in all circumstances, including during lockdown.

Some leading senior counsel have stuck their necks out to challenge the approach being taken by the arm of the civil of service responsible for court administration, the Scottish Courts and Tribunals Service (SCTS).  The Vice Dean of the Faculty of Advocates has written to SCTS and to the Cabinet Secretary for Justice challenging the approach of “mothballing” all but the most urgent civil business.  He has expressed dismay at the almost total shut down of the civil court system and urged a rethink, contrasting the approach in England and Wales where arrangements have been made to telephone and video hearings.  SCTS has responded today with a notice explaining that putting changes in place is complex and the arrangements have to work.  This has taken time but they say they are moving to conducting more digital business (although no details are given of the timescale or anticipated practical arrangements for these). 

The question echoing round the legal profession is “why”?  Why can separated parents use video links to keep in touch but the courts can’t? Why is the courts' administration service paralysed by costly analysis?  Why has the Scottish system not responded by immediately piloting hearings by Skype and Zoom, or even some of the simpler ones by telephone? 

Obviously, there are practical considerations: the Scottish courts have not been afforded the resources in recent years to invest in digitising their processes.  There are also considerations of human decency: the court staff are people whom we do not want to expose to risk. There are genuine questions of principle (and I’ve written about one of those that particularly troubles me).  But many factors are not insurmountable and even some progress on some types of hearing would keep the wheels of justice turning.  Other public services are managing to make leaps forward in a matter of days, sometimes smoothly, sometimes clumsily but they are moving forwards fast in a way that civil courts are not.  The “why” remains.

I think we were recently given the answer to this underlying “why” in a different context. Ben Christman and Malcolm Combe critiqued the funding policies for the court service in a paper published in the Edinburgh Law Review at the start of the year.  There’s a quick summary here.  The relevant point for present purposes is that the Scottish Government’s perspective on the civil courts proceeds on the basis that litigants receive the majority of the benefits of litigation, viewing the civil justice system as a private dispute resolution service.  But, as Christman and Combe point out, “civil justice is not a product for an informed consumer to choose at will: it is a constitutional fundamental and a human right”. 

In fact, access to civil justice is such an important part of the fabric of a functioning society that article 6(1) of the European Convention on Human Rights recognises a “right to court” to assert civil rights.  The right has to be practical and effective and although states can impose limitations they must not impair the essence of the right (there’s a deep discussion of this in the full paper). 

If there has been a cultural perception within government that civil courts are a consumer product rather than an essential component of a civilised society that might go some way to explaining the approach being taken to the current situation.  I doubt that’s the consciously held view of any of the individuals now battling with the mechanics of remote hearings.  But organisational culture does affect outcomes and the evidence suggests that’s there’s an immediate need for a rapid recalibration.

This isn’t just a theoretical issue.  In my experience, people don’t use a court because they want to: they use a court because they need to.  Families don’t want to find themselves reliant on the civil court system.  For some it’s a parachute without which they are in complete freefall.  For others it’s an escape hatch without which they are trapped.  For none is it a luxury.