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Could the courts service be privatised?

Wednesday May 29th, 2013
Ministry of Justice privatisation

Court service outsourcing plans denied but is further privatisation a possibility for the Ministry of Justice?

The Ministry of Justice (MoJ) has denied claims that it is planning for the ‘wholesale privatisation’ of the courts services in England and Wales after Secretary of State for Justice Chris Grayling’s announcement of a £1bn a-year savings plan sparked criticism from the legal community.

The Times reported that proposals were under discussion by the MoJ to outsource the HM Courts & Tribunal Service (HMCTS), the body responsible for all courts and court staff in England and Wales, to the private sector who would then be free to charge larger fees from commercial litigants and attract investors.

Mr Grayling said: “I have discussed these ideas in outline with the Lord Chief Justice and the Senior President of Tribunals and will continue to work closely with the judiciary as to the detail of these reforms, as well as work with the relevant Parliamentary Committees.”

The privatisation of the courts services would be the most significant change to justice administration for 800 years affecting around 20,000 UK courts staff if it were enacted.

A spokesperson for the MoJ said: “The proposals being considered are not the wholesale privatisation of the courts service. We are committed to the firm, fair and independent administration of justice.”

While the Ministry was quick to deny it plans to sell off all court services and buildings to a private contractor it has confirmed it is seeking ways of improving efficiency. The body is already involved in a consultation exercise aimed at slashing £220m a year from the criminal legal aid budget.

Mr Grayling’s statement said: “We need to look at the way we deliver our services to provide a more efficient service that delivers access to justice quickly and effectively, while delivering value for money for the taxpayer. At the same time, we must preserve the independence of the judiciary which lies at the heart of our constitutional arrangements.”

He went on to say he wanted to ensure that ‘those who litigate in our courts pay their fair share, and that it is possible to raise the revenue and investment necessary to modernise the infrastructure’.

The legal community responded with criticism at the possibility of any widespread privatisation and its potential to undermine the integrity of the judiciary system.

Former Lord Chancellor Lord Falconer said: “I am not in favour of privatising the courts. They should not be beholden to any private provider because the courts have to be independent of every interest,” while Brian Lee, chair of the Institute of Barristers Clerks, said: “It seems that the whole system might be changed to save the government £1bn in relation to the provision of a criminal legal system, something that any decent society must provide.”

President of the London Solicitors Litigation Association Francesca Kaye said she would welcome the privatisiation of court buildings if infrastructure and IT were improved as a result but that ‘Moving ‘problems’ to the private sector does not deliver automatic solutions’. She added that as a result of changes in functions and cuts, many senior court staff take on quasi-judicial functions on a daily basis and if they were to work for private companies there would be a ‘real scope for conflict of interest’.

Despite dissent from many leading justice figures on the concept of outsourcing court services, some privatisation has already occurred since the Coalition government took over parliament. Interpretation specialists ALS, now owned by Capita, took over the provision of translation in courts with mixed success while parts of the courts debt collection services have also been outsourced.

Since Mr Grayling took up his position as Justice Secretary last September he has provoked denigration from many in the legal profession through a number of cost cutting reforms including cuts to the Legal Aid, Sentencing and Punishment of Offenders Bill and plans to close and sell off more than 100 country courts.

Baker & McKenzie litigation partner Jeremy Winter said: “No one could object to the idea of improving the efficiency of the court service. However, I am sure that any privatisation involving the courts would immediately result in significantly higher court fees charged to litigants. This would reduce access to justice for the ordinary litigant, and is also likely to discourage foreign litigants from using the UK courts. Since the UK legal profession makes such a valuable and important contribution to UK exports, that is something that the Chancellor ought to be concerned to protect.”

Sadiq Khan MP, Shadow Justice Secretary, said: ‘It’s right that rich foreign litigants that choose to use our commercial courts should pay more for the privilege but handing over wholesale our courts to big private companies and hedge funds whose primary objective is profit would risk compromising the independence of our courts and judges.”

The MP added that Mr Grayling ‘should think through very carefully the full implications of his plans before he wrecks a system which is the envy of the world.’

The MoJ is keen to avoid being accused of mass privatisation but Justice Ministers are facing pressure from the Treasury to reduce spending and increase efficiency. The Chancellor of the Exchequer, George Osborne, confirmed that the MoJ is one of seven departments which have agreed to cut up to 10% from their budget from 2015/16.

While elements of privatisation may not match the ideological ideal of the English and Welsh justice system, it is unlikely to be exempt from reform measures which include further outsourcing as Justice Ministers attempt to meet austerity targets on an ever shrinking budget.

The Justice Secretary  is expected to announce detailed proposals to reduce the MoJ’s annual budget ahead of next month’s spending review with implementation planned to follow in the autumn.

A spokesperson for the Bar Council, said: “Whilst efficiency is important, justice, like health, cannot always be measured simply by cost.”

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