A right, not a commodity

We used to call them witnesses, judges, lawyers, litigants, defendants, jurors, ushers, clerks and members of the public.

Now these same people are collectively ‘court-users’. Some (who?) are apparently ‘customers’ and others (all of us?) ‘stakeholders’. Recently, a memo from Her Majesty’s Courts and Tribunals Service (HMCTS) used all three words when, in school monitor language, it warned barristers that when entering one of Her Majesty’s court buildings they would have to sip their takeaway coffees in front of security staff to prove that they were not carrying acid.

Putting aside for a moment the rights and wrongs of the proposed sip-test, the use of this language to describe people who go to court is not confined to officious directives but permeates Ministry ‘speak’ at every level.

Here is another recent example, lifted from an HMCTS blog on the design of ‘virtual’ courtrooms: ‘To make sure we reduce inconvenience and cost to our users and provide greater flexibility and access to our services, we must deal with cases in the most efficient and proportionate way.’

So the Ministry of Justice speaks today of ‘users’ and ‘services’. Perhaps by itself that does not matter very much, though it is annoying to have to decipher which particular ‘users’ are being referred to. For example, it is difficult to imagine that the Ministry is thinking of the pockets of alleged drug-dealers awaiting trial when it expresses a desire to reduce cost to ‘our users’.

But there is a more serious point about this wretched use of language. Its use is predicated on the basis that the courts deliver a product – justice, presumably – as a ‘service’, which comes at a measurable cost, and that if the business case for the service does not add up then, one way or another, the users will have to pay, if they have the means, through court fees, if not through the removal of, or cuts to, legal aid.

When did this begin? Professor Genn in her 2008 Hamlyn Lectures traced to 1992 the moment when ‘the most significant change took place. The Treasury adopted a different view of civil justice. Like any other government service supplied to paying customers, the civil justice system was, apparently, thereafter to pay for itself. The entire cost, including the cost of the judges, was to be met from court fees’ (Genn, Judging Civil Justice, 2010).

Sir Henry Brooke has argued that ‘this alteration to the funding of a critical social institution was neither debated nor approved by Parliament at the time’ and that ‘in all comparable common law countries, the cost of resourcing the civil courts is shared between the taxpayer and the litigant’ (Sir Henry Brooke, Should the Civil Courts be Unified?, p 30).

The current civil and family court figures are illuminating. Fee income was almost £788m in the last financial year (y/e March 2017), £186m from family court fees and £602m from civil court fees. In total, accounting for fee remittances (£64m) and other ‘spending’ on civil justice, the government recorded a surplus of almost £102m.

The same attempt to make the justice ‘service’ pay has been taken in relation to claims against employers, though the figures are comparatively small. The total amount collected for employment tribunal fees since their introduction three and a half years ago is estimated at £32m (House of Commons Library, Briefing Paper Number 7081, 4 August 2017).

So in 2017, justice as a commodity is here, at a price, much of it soon to be delivered online. In the foreword to HMCTS’ annual report which published the fee income figures, the redoubtable new CEO wrote with evident pride of the reform programme transforming ‘our products and services’.

But last month, in R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51 – one of the final cases presided over by the outgoing President Lord Neuberger – a seven-judge configuration of the Supreme Court took the language, and its connotations and the characterisation of a mere ‘service’ and ‘users’, thoroughly to task:

‘The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings.’ (para 66)

I invite those that have not done so to read the next few glorious paragraphs where Lord Reed patiently and eloquently develops this theme.

Lord Neuberger and Lady Hale and five others concurred with this magnificent judgment which has resulted in the scrapping of the iniquitous fees for claimants before the employment tribunal – and the likely reimbursement of £32m to those who ought never to have been asked to pay.

But the guff about ‘service users’ continues for the moment, unabated. Who is it that thinks this way? I know lawyers and judges don’t and I wonder how many other ‘users’ read it. It is not, I suggest, a mere question of language. It betrays, as Lord Reed says, a misunderstanding of the purpose of the administration of justice. We should not accept this language, nor the objectionable connotations that lie behind it.

If you understand that civil justice is more than a mere public service to those who can afford it, then you see why we should return to question again civil court fees that have become too high. A bigger question still is whether the UNISON judgment requires us to revisit the turning taken in the early nineties.

Was it ever right to suggest that Justice must wipe her own face?