2 October 2009

Wigs, hats and juicy English spiders...

Fear not, I haven’t expired. I’m now fully embedded in the autumnal south of England, which at the moment feels profoundly Keatsian…

SEASON of mists and mellow fruitfulness,
Close bosom-friend of the maturing sun;
Conspiring with him how to load and bless
With fruit the vines that round the thatch-eves run;

The sleepy plants are degged with dew and dappled with juicy garden spiders and I’m tucked in my new Victorian garret. All is well, calmness rules and blogging can now continue. Unfortunately, the bloggus interruptus fell in a phase when a bumper crop of stories of interest rumbled through the public consciousness. The new Supreme Court first swore and sat, sans wigs but with one gratuitous hat, Kenny MacAskill published the Legal Services (Scotland) Bill which promises to generate a good deal of ill-natured banter between Scotland’s groansome legal professions, insisting on their civic intent, and others pushing a discourse of choice, consumerism and the dismantling for monopoly and limitation.

Finally, and probably most significantly, the group chaired by Brian Gill has published its Civil Courts Review. Civil justice reforms and courtly institutional realignments may not be what drags the electorate to the polls. It is however, in my humble submission, precisely was the Scottish Parliament should be concerning itself with. For me, devolution, if nothing else, is a sharp call to public and political responsibility. Glance about the country, it insists, seek out mischiefs, disclose injustices. Change is within your power. Of course, there are limits – these constraints being grist to the nationalist mill and the stuff of the intellectual case for independence. Without underestimating these limitations, Holyrood is already empowered radically to alter swathes of Scotland’s public life. Due to its arid associations, and long roll of pages, I don’t expect too many of you will have read both volumes of the Review, published on the 30th of September. For those who are interested, a brief synopsis is available here.

Gill is the Lord Justice Clerk, an authoritative insider, and he does not mince in words. I particularly want to highlight how trenchantly the pert Gill words his critique of Scotland’s current judicial structures. It is worth quoting the first page of his introduction to the review, which contains many of the overtly and deliberately combustible phrases.

The theme of this Report is that the legal system is a public service and that in the allocation of the resources available to it the public interest is of vital importance. Since resources are limited, the excellence that the system cannot at present achieve must be pursued in the most cost‐effective way.

The basic structure of civil jurisdictions in the Scottish courts remains much as it was in the late nineteenth century. Meanwhile, fast moving changes in the social and economic life of Scotland in recent decades have left us with a structure of civil justice that is seriously failing the nation. Reform is long overdue. The structural and functional flaws in the working of the Scottish civil courts prevent the courts from delivering the quality of justice to which the public is entitled.

The Scottish civil courts provide a service to the public that is slow, inefficient and expensive. Their procedures are antiquated and the range of remedies that they can give is inadequate. In short, they are failing to deliver justice. Public confidence in our system is being eroded. The much admired qualities of fairness, incorruptibility and expertise of our judicial system will have little significance if the system cannot deliver high quality justice within a reasonable time and at reasonable cost. One of our basic propositions is that since the legal system, as a public service, must be adequately resourced, its structures and its procedures must be so arranged as to eliminate needless delay and unreasonable cost. If the civil justice system cannot do that, it perpetrates injustice.

An efficient civil justice system is vital to the Scottish economy. It is also vital to the survival of Scots law as an independent legal system. Some Scottish commercial undertakings have so little confidence in our system that they enter into contracts providing for English jurisdiction and choice of law. If the Scottish civil courts and their procedures continue to fail the public, it is inevitable that Scots law itself will atrophy. We consider that minor modifications to the status quo are no longer an option. The court system has to be reformed both structurally and functionally.

Charged and biting analysis. After such a demolition of the credibility of an institution by one of its sons, change is in the fustian legal air, methinks. If our processes are flawed, let us alter them. If we perform the works of injustice, lets find ways to work differently. Just what devolution is all about.

1 comment :

  1. I hope you're suitably ensconced within England's heartlands.

    Some years ago I decided to process a claim through the small claims court here. Never again. The proceedings somehow drifted into a second day, mainly because the defendant's had employed a solicitor to fight their case.

    I won in spite of the system, not because of it. In fact I was actually out of pocket because the expense of losing two day's business was more than the financial claim.

    Completely non-user friendly and archiac procedures which do not serve the public. My thoughts were the courts are not to serve the public or justice but the few who work within them.