Courts and tribunal reform - the user perspective Scottish Public Law - PDF document

Courts and tribunal reform - the user perspective Scottish Public Law Group Summer Conference 10 June 2013 Sarah O’Neill - notes to accompany powerpoint presentation Slide 1: I have been asked to give a perspective on the current reforms from the point of view of the user. I have been involved as a representative of the user interest in discussions on civil justice reform for 15 years. My former organisation, the Scottish Consumer Council (SCC), first called for a civil justice review back in 1980 when the Hughes Commission (Royal Commission on Legal Services in Scotland) raised concerns that court processes were too formal, slow, complex and expensive, and were deterring people from asserting or defending their rights. Since then, we have had the Paths to Justice Scotland research 1 , which raised similar concerns in 2001. Then came the first report of the Civil Justice Advisory Group (CJAG) chaired by Lord Coulsfield, and published by the SCC in 2005 2 , which took a user perspective, and concluded there was a case for reform of important aspects of the civil justice system. This led to Lord Gill’s review, and was followed up by a second CJAG report in 2011, which considered the wider civil justice system beyond the courts. 3 The SCC, and its successor, Consumer Focus Scotland, also published the two reports of the Administrative Justice Steering Group chaired by Lord Philip 4 , which took a use - led approach in relation to tribunals and the wider administrative justice system. In 2012, the Scottish Government published its Strategy for Justice , which states: we are undertaking the most radical transformation of the courts and tribunals system in at least a century’ . It has b een a long time coming, but now all of these reforms are coming together at the same time. 1 Genn, H. and Paterson, A. (2001) Paths to Justice Scotland: What People Do and Think About Going to Law, Oxford – Portland Oregon: Hart Publishing 2 Scottish Consumer Council (2005) The Civil Justice System in Scotland- a case for review?: the final report of the Civil Justice Advisory Group, Glasgow: Scottish Consumer Council 3 Consumer Focus Scotland (2011) Ensuring effective access to appropriate and affordable dispute resolution: the final report of the Civil Justice Advisory Group, Glasgow: Consumer Focus Scotland 4 Scottish Consumer Council (2008) Options for the Future Administration and Supervision of Tribunals in Scotland, Glasgow: Scottish Consumer Council; Consumer Focus Scotland (2009) Administrative Justice in Scotland- The Way Forward, Glasgow: Consumer Focus Scotland 1

As I only have a 20 minute slot, I thought it might be helpful, rather than discussing the current court and tribunal reforms in detail, to look at who the users are, what they want and need, and how the system might be more responsive to their needs. My focus will be more on the court reforms, but I will also discuss aspects of tribunal issues. But I want first to make 2 very important points which need to be borne in mind when considering these reforms. Slide 2: Firstly, the civil justice system is much wider than just court and tribunals. The courts are only the tip of the iceberg of our civil justice system. As we all know, very few people with a civil dispute actually get to the stage of a final court hearing (although many more do go to a tribunal). Within that vast area below the waterline are a complex and confusing raft of processes and agencies that operate within the shadow of the court. The civil justice system (and I include within that the administrative justice system) includes all the agencies which people interact with throughout their journey through the system - from when their civil justice problem first arises - from recognising they have a problem, to doing something about it . These include advice agencies, lawyers, complaints processes, informal dispute resolution mechanisms including ombudsman, arbitration and mediation. Very few people actually end up in formal dispute resolution processes, but what happens below that waterline has a dramatic effect on people’s lives. This means that civil justice reform must not just be about the courts and tribunals. While of course they have a vital role within the system, they are just one aspect of the system - the tip of the iceberg. We need a system - wide approach to civil justice reform, as recommended by the Civil Justice Advisory Group, and I am pleased to see that the Scottish Government’s Making Justice Work programme aims to take a co - ordinated system wide approach. Slide 3: The second important point is that the civil justice system provides a public service – as recognised by both Lord Gill and the Scottish Government. There is an increasing emphasis within public service reform on user focus - and like any public service, the civil justice system should be responsive to the needs of its users. Their interests should be central to the reforms, rather than the interests of those who work within the system. The overriding objective of the civil justice system should be to improve access to justice for all within a system that is proportionate, affordable and accessible. This is in creasingly recognised by the Scottish Government – for example, Roseanna Cunningham, the Minister for Community Safety and Legal Affairs, said in her foreword to last year’s consultation on a proposed new tribunal structure - ‘We 2

want to retain and build on a tribunal system that puts users at the centre. We want the public to have confidence in and experience a system that treats them fairly, quickly and with respect.’ This is to be w elcomed, although it remains to be seen whether the eventual reforms will put users of the civil justice system at the centre. So if the civil justice system should be focused on - and responsive to - the needs of its users - who are those users? Slide 4: The answer is all of us! - everyone who has ever had a civil justice problem - with their home, their job, their relationships, goods or services that they buy. The users are d efinitely not just solicitors/advocates/judges/sheriffs/court staff. These groups tend to see themselves as the users - and of course they are to an extent, and of course they have an interest in ensuring a modern and efficient system - but ultimately the system is there for the benefit of the public who need to use it. The users are all of those with disputes who need to use the civil justice system. I am aware that I am falling into the trap I have just mentioned here by using the language of the courts, but they can be pursuers in small claims or family actions, or defenders in debt/rent arrears / repossessions cases. The point I’m trying to make here is that anyone involved in a civil dispute is a user of the system, whether they initiate it or are responding to action taken by someone else. In relation to tribunals, users could be those who feel they haven’t got the benefits they are entitled to, or who feel they have been unfairly treated by their employer, for example. Most people are only likely to come into contact with the formal civil justice system once or twice in their lives. They are therefore at a major disadvantage compared to the ‘repeat users’ - big companies and public bodies. The k ey point, however, is that the vast majority are reluctant users of formal systems - whether they initiate the matter or are responding to it. Slide 5: The evidence is clear that the current formal civil justice system – the courts - is not meeting the user’s needs. This picture sums up how most people see the legal system at present – the Paths to Justice research found that people in Scotland have more negative views of system than those in England and Wales. The q uotes on the slide come from research by Consumer Focus Scotland and the Scottish Legal Aid Board into court users’ experiences, published in 2009. 5 The first is from a rent arrears defender, the second from a small claims pursuer. The research supported previous evidence that people are concerned about cost, formality, legal language 5 Consumer Focus Scotland/Scottish Legal Aid Board (2009) The views and experiences of civil sheriff court users, Edinburgh: Consumer Focus Scotland/Scottish Legal Aid Board 3