UK Constitutional Law Association

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Dawn Oliver: Does treating the system of justice as a public service have implications for the rule of law and judicial independence?

oliverIf you asked a second year LLB student, or even a professor of public law or a legal practitioner, ‘what are the most fundamental functions of judges and the system of justice?’ you would probably get ‘doing justice to all without fear or favour’ and ‘upholding the rule of law’ among the most common answers. And if you asked ‘what are the most important ways in which performance of these functions is secured?’  you would expect to get ‘independence of the judiciary’ among the answers.

But if you visit the websites of the Ministry of Justice, the Lord Chancellor and Secretary of State for Justice, you will find no mention of these matters. These websites are mostly focused on the cost of legal aid, and criminal justice. And this notwithstanding the fact that the Constitutional Reform Act 2005 – also not mentioned on the websites – specifically preserves the Lord Chancellor’s role in relation to the rule of law (section 1(b)) and requires the Lord Chancellor and other Ministers to uphold the continued independence of the judiciary (section 3(1)). Why are judicial independence and the rule of law not mentioned? I suggest that it is because another understanding of the nature of the system of justice has gained currency in political and bureaucratic circles, an understanding that can do great damage to the rule of law.

The system of justice has come to be regarded by many as a public service like any other – and even only that. The title of Her Majesty’s Courts and Tribunals Service illustrates the point. But the trend goes back some thirty years. In 1986 a JUSTICE report stated that: ‘The courts … should be seen to provide a public service, as much as … the National Health Service’. (And presumably just as it would be inappropriate for the Secretary of State for Health to seek to pressurise a consultant to treat a patient in a particular way, so it would be inappropriate for the Lord Chancellor and other Ministers to ‘seek to influence particular judicial decisions through any special access to the judiciary’ (Constitutional Reform Act 2005, section 3(5)): by implication there is nothing exceptionally ‘constitutional’ or fundamental about the independence of the judiciary as compared to that of doctors.)

Since the promotion of the ‘Citizen’s Charter’ policy in 1991 the courts publish ‘charters’ for parties, witnesses and other, laying down ‘service standards’ as to delay, information, and how to complain about administration. Of course these matters are aspects of ‘service’ and do not touch upon the substance of judging, judicial independence and the rule of law. But for those who do not understand the rule of law and why it is important, it is only a small step to regarding judges themselves as only providers of services to litigants appearing before them, rather than as performers of an important constitutional role on which much of the system of government depends. I have heard it said at a Chatham House rule seminar by a senior civil servant that the role of the judiciary is not particularly special or different from the roles of doctors or nuclear regulators or anyone else involved in the running of public services.

The fundamental importance of justice, the rule of law and judicial independence are undermined by treating the system of justice as mainly just a public service: the system is different in important respects. The maintenance of the rule of law is of a different order of importance from the provision of other public services. The government and other public bodies are not ‘customers’ of, for instance, the NHS. They are often ‘customers’ of the system of justice, especially in judicial review and other public law cases and in criminal prosecutions. They may have self-serving or personal (not public) interests in the outcomes of cases, e.g. the avoidance of political embarrassment, gaining votes,  losing votes, loss of reputation, frustration in the pursuit of their favoured policies, loss of authority if they lose a case.

This ‘public service’ perspective puts some proposals for changes to the system of justice in a new light. The availability to critics of government of recourse to the courts and the independence of the judiciary can be a nuisance. What might a government do if it wanted to avoid litigation and embarrassment and enable it to get away with illegality? Just as, when developing policy in relation to the NHS, it can seek to limit access to the service (e.g. to drugs) and costs (e.g. by cutting staff, closing hospitals), so to it can do this in relation to the system of justice – but with startling consequences for the rule of law.  It could limit access to justice and deprive the courts of jurisdiction over unwelcome cases by reducing the limitation period for claiming judicial review and limiting the standing of charitable or voluntary sector bodies; it could find ways of weakening the ability of unpopular individuals (e.g. illegal immigrants, asylum seekers, convicted criminals) to pursue their claims in court by limiting their access to legal advice and representation; it could secure that unpopular parties (especially defendants in criminal cases) are less likely to win their cases, by depriving them of competent, reasonably paid representation; it could undermine the quality and thus the authority of the judiciary, deterring able practitioners from practice leading to judicial office by drastically reducing their earning capacity.

I do not allege that any of these are the conscious intentions of the government. But the overall effect of such changes, based in part on assumptions that the system of justice is just another public service, may be to undermine the independence of the judiciary, broadly understood, and the rule of law. Thinking of the system as a service obscures its special constitutional importance.

Dawn Oliver is an Emeritus Professor of Public Law at the Faculty of Laws, University College London.

8 comments on “Dawn Oliver: Does treating the system of justice as a public service have implications for the rule of law and judicial independence?

  1. Jon Mack
    March 19, 2014

    Reblogged this on JonMack and commented:
    Prof Dawn Oliver on why the justice system should be thought of in constitutional terms rather than as a service provided or procured by government.

  2. David Brent
    March 19, 2014

    The Judicary has proved to be able to ensure that their own acts and the acts of their fellow judges are above the law in terms of the provisions in Section 7(1)(a) and (b) of the HRA 1998. This has been at the expense of a fair trial, an effective remedy and access to justice. The Judiciary are far too independent and there is no recourse to any remedy even when the Judiciary breach their Judicial Oath.

  3. Root
    March 19, 2014

    I think Lord Woolf accelerated this process by engaging in legal reform as a servant of the real objective of cutting the cost of Courts.

  4. Charlie Bishop
    March 19, 2014

    Thank you for this thought-provoking post.

    I suspect the argument that ensuring the proper administration of justice is more than a public service works in the realm of public law, but I wonder whether that same argument works when the defendant in question is just another private citizen. I agree the rule of law feels like something other than a service there, but I don’t think the reason provided above would work because the defendant is not the very body trying to cut the service in question. Rather, the constitutional status of each party is the same: but the importance of upholding the rule of law is no less.

  5. Geoffrey
    March 21, 2014

    The thoughts expressed here have resonance in the lay mind. In a way, the legal system – I avoid the word ‘Justice’ in deference to Holmes – becomes subservient to the majority in a democracy. That leave Alternative Dispute Resolution as the only place where minorities can seek the protection of their rights. It’s not a role which ADR is yet able to perform. I’m not sure how it can.

  6. Pingback: Dawn Oliver: Does treating the system of justice as a public service have implications for the rule of law and judicial independence? | Del Hunter

  7. Ann
    April 17, 2014

    The Government did just this in the case of the Gosport War Memorial Hospital – with Alan Milburn as Health Secretary. After ~10 relatives complained of deliberate diamorphine overdoses in a rehabilitation ward, Milburn ordered Prof. Baker to conduct a review of case notes. He concluded that ~ 835 deaths required an inquest each. That was in 2003. Milburn’s response was to suppress release of this report (it was only published in 2013). Both the Coroner and the Asst. Chief of Police asked Milburn for a Public Inquiry, and were told each death had to have an inquest. When they approached the Ministry of Justice for funding they were turned down. It took a further decade for the last inquest to be held. Perversely too, one of the recommendations in the Baker Report (https://www.gov.uk/government/publications/gosport-war-memorial-hospital-deaths-of-patients) was that the NHS should design and implement an ‘end of life care pathway’ to ensure that this level of elder abuse never happened again. The NHS came up with the ‘Liverpool Care Pathway’🙂 When running for election, current Care Minister Norman Lamb supported the bereaved Gosport families in their quest for a full Public Inquiry, even asking an EDM in which he stated ONLY a full PI with evidence given on oath would be sufficient response to such wholesale manslaughter (http://www.parliament.uk/edm/2009-10/691): after realising that the LCP formally recommended using the identical drugs/dosages/delivery routes that were shown to have killed so many in GWMH however, he changed his mind, and offered only a ‘Hillsborough style panel’, despite the cost of this far exceeding that of several full Public Inquiries by millions.

    As to the relatives of prematurely ‘euthanased’ Liverpool Care Pathway victims – who were also far from ‘terminally ill’, just vulnerable, frail, misdiagnosed or expensive to treat – they received no hearing at all, and no access to justice unless their families were extraordinarily wealthy. The terms of reference for the Neuberger review were so well defined, you had to admit your relative was ‘terminally ill’ to even make a submission.

    There was no consent process at all on Liverpool Care Pathway v.11 – even after Oct. 1st, 2007- and no test of competency either. These deaths, by law therefore, should all be cases of wilful neglect under the MCA, and yet there is no accessible legal redress for the familes at all.

    With no Legal AId funding, there is no possibility of taking either of these connected cases to a Judicial Review to win a Public Inquiry into the continuing, large scale manslaughter of the elderly by the NHS at all.

    Mrs Reeves: daughter of Gosport War Memorial Hospital victim http://www.dailymail.co.uk/news/article-1247000/Dr-Jane-Barton-escapes-struck-prescribing-potentially-hazardous-levels-drugs.html )

  8. Pam Coughlan
    June 2, 2016

    How can human rights protection be restored to self funding residents in private care homes?

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