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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 Oct 18

Under siege

After the extra money announced for prosecutors and then the police, something has to be done now for the defence sector

10 Sep 18

Programme for action?

How much can we expect to happen through the Scottish Government's Programme for Government?

6 Aug 18

No deal, no say?

The arguments for a second EU referendum apply with greater force in a "no deal" scenario

9 Jul 18

System under threat

Items in this month's issue illustrate increasing threats to the rule of law and the integrity of the legal system

11 Jun 18

Speaking out

The benefit sanctions system has drawn some unusually sharp comments from the Society, but the need for such strictures is likely to increase

8 May 18

After Windrush

The treatment of those of Caribbean origin shows a need for the law to be rebalanced

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