UNISON Scotland's response to the Scottish Civil Courts Review
UNISON Scotland welcomes the opportunity to respond
to the Scottish Civil Courts Review consultation paper. UNISON
is Scotland's largest public sector trade union representing over
160,000 members delivering public services. We are a significant
user of the civil courts representing our members in a range of
civil actions. We also have a wider citizenship interest in access
Procedural aspects of the review
UNISON Scotland is primarily concerned over the
lack of engagement and involvement or one of the major stakeholders
in Civil Justice - the trade union movement and affiliated and
related organisations. Trade unions are mentioned once in the
entire review paper and even then the reference is wrong. UNISON
Scotland handles over 500 personal injury cases every year and
whilst a number do not reach the courts this still makes us a
significant stakeholder ignored by this review to date.
We also have concerns over the makeup of and appointments
to the review team. Why is the pressure group, the Scottish Consumer
Council that has a strong ideological position a member of the
team and no other stakeholder has been invited to take part? Why
have parties with the commercial interest in the use of mediation
been invited onto the team?
We would also question why the review team so heavily
dominated by Judges? Much of the issues being discussed and determined
by the review are political, commercial and involve issues of
social and economic policy. Judges serve a very important role
within our society but determining and advising on economic and
social political policy is not one of them.
The starting point for the review paper is that
the basic function which the review must serve is to address issues
of costs and the proportionality of costs associated with Civil
Justice. It assumes that the only "value" that can be
placed on a civil court action is the financial value of the damages
sought and obtained.
This is not the correct starting point for an entire
review of the Civil Justice system. The review should start with
the most fundamental aspect of Civil Justice by looking at people's
rights and considering which rights ought to be protected, advanced
and exercised through the civil courts. This means that the starting
point for the analysis should be our modern day constitution -
the European Convention on Human Rights.
The "value" of a case is not the financial
compensation obtained but the role that the case played in a wider
context. The value of the personal injury case is that it can
make one workplace safer for all of its employees or in certain
circumstances every workplace safer for every Scottish worker.
A number of personal injury cases successfully supported by UNISON
Scotland have resulted in important changes to working practice
including needlestick injury, stress and violence at work. Many
of these cases had a small value to the individual but a much
wider impact on workers in encouraging employers to adopt safer
working practice. This collective impact, fundamental to the role
of trade unions in our society, appears to be little understood
by the judiciary and organisations like SCC that appear to dominate
Role of the ECHR in the Review
The Civil Justice System should be reviewed on a
rights based analysis. It can properly be said that in Scotland,
as throughout the whole of your Europe, our "bill of rights"
or modern day constitution is found in the European Convention
on Human Rights and the various articles which make up the convention.
In addition the Scotland Act requires that all Scottish Legislation
be ECHR compliant.
More than that our political leaders must, and society
demands, that we not only comply with our duties under ECHR but
positively promote our peoples rights as enshrined in the convention.
Accordingly, while reviewing our Civil Justice System and deciding
what changes require to be made to it we must ensure that our
Civil Justice System not only complies with ECHR but that it is
specifically designed to promote and allow individuals to fully
exercise each right enshrined in the convention.
Some examples of ECHR rights relevant to this review
Article 2 - the right to life
The convention is organised in a hierarchical way
and this is the most important right of all. Accordingly all matters
and legal issues which impact upon this article ought to be handled
in our Supreme Court, The Court of Session. This includes all
investigations into workplace deaths, including FAIs.
It is recognised by the European Courts and is in
any event entirely logical that the article does more than serves
to provide the right to life. It is an essential element of that
article that it also serves to protect the right to life which
in turn means that all issues of workplace health and safety,
which fall firmly within protecting the right to life, ought to
be given the highest priority in our Civil Justice System. This
means that they are open to being pursued without restriction
or barrier in the Court of Session as a recognition of their importance
to both society and the terms of the convention.
As highlighted above the trade union movement have
always used every personal injury case which they advance in behalf
of their member not only a means of obtaining just recompense
for that member but just as importantly as a means for improving
health and safety either in an individual workplace or on a more
broad and wide spread manner and this ought to be recognised by
the review as a cornerstone of Civil Justice.
Equally thereview ought to consider providing robust
means by which trade unions and individual workers can advance
Court actions where individualss attached.
Article 6 - the right to a fair Trial
This article goes beyond a criminal trial and is
more properly called the right to access to justice. Access to
justice is, of course, at the heart of any civil justice system
and is the principal which far outweighs any notion of cost or
a perceived financial value for a Court case.
Access to justice should mean being able to exercise
your rights in an appropriate legal forum of the pursuer's choosing.
This includes appropriate legal assistance and representation
irrespective of the financial resources.
There are problems which presently exist within
the civil justice system which militate against access to justice
which the review paper has not picked up on or sought to improve
and additionally the paper itself makes proposals which will reduce
access to justice. These include:
- Privatisation of the Courts - it is now necessary for a
party wishing to pursue a civil case to pay for the Court
and the judicial system on a "pay as you go basis".
This has turned the Court into a commercial commodity where
one is required to pay for and consume rather than being a
public service funded by our taxes. This goes against the
principal of access to justice and must be reversed.
- Recovery of legal fees - the review paper provides statistics
which show that successful party in a civil Court action will
only recover 57% of his Solicitors legal fees from the other
side in Scotland. In England that figure is 89%. This inequality
between Scottish users of the Court system must immediately
be redressed. More importantly the system of compensation
for personal injuries is based upon the principal of restitution
which means that the injured party is only supposed to be
put into the same position they were in before the accident
through the compensation. If the injured party requires to
pay 46% of Solicitors fees out of damages then they will not
have obtained restitution. There should be full legal fee
recovery for personal injury cases.
- Mediation/Personal Injury Assessment Board - the Civil Justice
review paper on mediation contemplates a personal injury assessment
board. There is not access to justice in terms of the ECHR
if pursuer's are forced institutionally down the tribunal/mediation
route. Access to justice means access to the Courts with proper
representation and cost recovery.
Article 8 - right to respect for private and
The cornerstone of private and family life is the
home and the right to have a home. The Civil Justice System presently
does not do enough to protect this right and the Civil Justice
review does nothing to remedy the situation.
It is to easy to evict people from their homes for
very small arrears in rent and the law does not entitle such people
(who are surely at that point in their life some of the most vulnerable
people in our society) the right to legal representation. Indeed
because of the Court limit the absurd position which presently
exists is that if a party in that situation instructs a solicitor
to protect them against losing their home the solicitors fees
will be paid if he is unsuccessful in saving the parties home,
but will not be paid if the solicitor is successful in saving
the parties home.
Public Policy Issues
The Scottish Government aim to eradicate homelessness
by 2012 and yet, as described above, under the present Civil Justice
System it is relatively easy to evict people from their homes
and there is no proper provision for vulnerable people in that
situation to receive proper legal representation.
It is recognised by the Scottish Government that
one in four adults in Scotland lack basic numeracy and literacy
and efforts are being made to resolve this problem. In stark contrast
to this fact, one of the basic principals behind the Civil Justice
review seems to be about empowering individuals to pursue certain
Court actions on their behalf without legal assistance (and indeed
financially there is no opportunity for them to receive legal
assistance in many circumstances). Clearly, the 25% of our nation
who lack basic literacy and numeracy skills will gain little benefit
from being so empowered and instead should be given every access
to legal help and support.
It appears to UNISON Scotland, that as so often
is the case, a consumerist approach to public services is designed
to empower the articulate middle and upper classes at the expense
of working people. This risk has been recognised in other public
services in Scotland and has resulted in a distinctive Scottish
public service model. This review is clearly not consistent with
There would appear to be a clear underlying agenda
on the part of the authors of the Civil Justice Review to remove
all, or nearly all, personal injury cases from the Court of Session.
This would undermine decades of work by trade unions to recompense
members who have suffered injury and prevent such injuries happening
Personal injury cases are often of small value.
For example around 70% of UNISON Scotland cases are settled for
under £5000, but as highlighted above they can still be important
in protecting workers from future injury by developing better
workplace safety. UNISON Scotland carefully monitors our personal
injury case statistics to identify trends and then respond with
briefings and negotiating guidelines for our branches and safety
There would appear to be a clear underlying agenda
on the part of the authors of the Civil Justice Review to remould
the Civil Justice System principally to benefit users of the commercial
Court procedure at The Court of Session. We are aware that the
insurance companies have long lobbied for personal injury cases
to be removed from the privative jurisdiction of the Court of
Session for their own vested commercial reasons that have nothing
to do with the safety of workers.
There would also appear to be an underlying agenda
to promote mediation and alternative forms of dispute resolute
and to make those mechanisms compulsory to Court users to the
exclusion of access to the Civil Courts and access to Civil Justice.
It may well be that some members of the judiciary find personal
injury cases less than interesting. However, the job satisfaction
of judges should not be the primary public policy driver of the
Civil Justice Review.
UNISON Scotland has very significant concerns not
only about the content of this review but over the process and
underpinning principles upon which the review is based. We are
concerned that key conclusions in the Civil Justice Review have
been reached before the issue even went to consultation. We are
therefore equally concerned over the extent to which this agenda
will be followed irrespective of the consultation response. The
narrowly drawn membership of the review, excluding other key stakeholders,
gives us little confidence in the review outcome.
UNISON Scotland would therefore urge that the review
starts with a rights based approach to civil justice that recognises
the wider public policy considerations that we have outlined above.
For further information please contact:
Matt Smith, Scottish Secretary
14, West Campbell Street,
Glasgow G2 6RX
Tel 0845 355 0845 Fax 0141 342 2835