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Society blog

21 Feb 18

Scottish Legal International comes to fruition

Joint initiative aims to promote Scottish profession internationally

30 Aug 17

A paralegal's tale

Janet Rieu-Clarke, the Law Society’s accredited paralegal, explains the path that led her to new role at the Society and the rationale behind the new accredited paralegal status.

30 Aug 17

A call to vote from John Scott

John Scott QC urges his fellow solicitor advocates to vote for their dedicated representative

29 Aug 17

No globalisation without representation...

Katie Hay discusses the globalisation of the legal market and urges Scottish solicitors working internationally, to get involved

24 Jul 17

Bringing the world to "world-class"

Sarah Sutton, digital communications executive at the Law Society of Scotland, talks about her bright idea to ensure international representation on the Society’s Council

26 Jun 17

The Debate - backstage, front of house and top tips

In this mini-series of blogs, three key players in the Donald Dewar Memorial Debating Tournament share their individual perspectives of the event.

19 Jun 17

Got a passion for the profession?

Could one of the 23 current vacancies for 16 different committees be just right for you?

28 Apr 17

Professional Practice - advising the advisers

Scottish solicitors help their clients through some of the most momentous occasions of their lives, personal or professional, good or bad. But where do solicitors turn for support? Prof Prac, that's where.

1 Nov 16

How getting involved in debating can change your life

Head of education Rob Marrs explains how getting involved in debating, whether as competitor or judge, can be incredibly rewarding. And more importantly, he explains how to win a debate.

14 Oct 16

Career development and volunteering at the Law Society of Scotland

If you want to enhance your career, develop your skills or just give back to your profession, there are lots of different personal and professional development opportunities at the Society

Editors Blog

Taking access to justice seriously

7 Aug 17

The House of Lords decision on employment tribunal fees elevates this constitutional principle

The UK Supreme Court is not a constitutional court as exists in some jurisdictions, but it is developing some valuable practical applications of constitutional principles.

“Access to justice” has been a watchword of our Society for some time, but has met with limited success as a lever to influence Government policy. Following the Supreme Court ruling in the employment tribunal fees case, the “constitutional right of access to the courts”, as the judgment terms it, is one to which serious attention must be paid.

The most quoted passage in the judgment is that concerning “the heart of the concept of the rule of law”. After stating that the courts exist to apply and enforce the laws made by the democratically elected and accountable Parliament, it continues: “In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter... That is why the courts do not merely provide a public service like any other.”

Fees, the court makes clear, may certainly be charged, but on the authorities a Fees Order will be ultra vires if there is a real risk that persons will effectively be prevented from having access to justice.

Further, even where primary legislation authorises an intrusion on the right of access to justice, it is presumed that the degree of intrusion must not be greater than is justified by the objectives the measure is intended to serve.

It was the evidence of the deterrent effect of the fees in question, including their disproportionality to the value of many claims, that proved crucial, and any future challenges founded on this decision will have to be similarly evidence-backed to have a prospect of success.

Nevertheless, the Scottish Government, too, should be sitting up and taking notice. The most recent fee increases in the Scottish courts were designed to accelerate the achievement of the policy of full cost recovery. While ministers insisted that their objective remained an “accessible, affordable” civil justice system, the fees now charged must make some people think twice about litigating.

Where the line should be drawn is not an easy question. But the Supreme Court’s quoting of Lord Chancellor Gardiner, who wrote in 1965: “The courts are for the benefit of all, whether the individual resorts to them or not”, does not sit easily with the statement in last summer’s fees consultation that “those who make use of the services of the courts should meet, or contribute towards, the associated cost to the public purse where they can afford to do so”.

 

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Blog archive

9 Apr 18

Mind the gap

Do the Gender Pay Gap Regulations provide enough useful information to justify their approach?

12 Mar 18

Case to be made

If the independent legal aid review could not find evidence to support a general rise in fees, what should the response be?

9 Feb 18

Crunch time

The independent reports due in the next few months will be an indication of how the profession is seen from outside

9 Jan 18

Hold tight for 2018

Get set for another rollercoaster ride through the year

4 Dec 17

Trends and revelations

From the Journal employment survey: sexual harassment must be taken seriously

9 Nov 17

Mergers and markets

After the Maclays-Dentons merger, what now for the independent Scottish legal firm?

9 Oct 17

For the greater good

The profession should support those who attempt to improve the lot of the most vulnerable

11 Sep 17

Brexit and the legal order

Government recognition of the need to continue civil judicial cooperation with EU countries after Brexit is welcome, but how can it exclude the involvement of the CJEU?

7 Aug 17

Taking access to justice seriously

The House of Lords decision on employment tribunal fees elevates this constitutional principle

10 Jul 17

Advance of the courts

There is momentum behind civil procedure reform, and practitioners need to be alert to have their say