Moses LJ has set his satirical pen a scribbling in a recent speech reported in the Gazette. It simplifies, as satire must I suppose, but it got me thinking about something that has been bothering me for some time. Before I come to that, let me set the general theme. There is already a market for judicial services. It may not bite as hard or as dangerously as price competitive tendering, and it may not as directly influence the judges, but it is there nonetheless. It works on a number of levels. Forum shopping from judges can be a form of market for influence. Arbitration is a more obviously economic market in competition with the courts.
This leads me to my key point. An insightful watcher of the legal market said to me recently, demand for arbitration had ‘gone through the roof’. What about the courts, I asked? ‘Only the Russian oligarchs are interested in those’. If this is true (and, of course, it is a generalisation), it raises a lot of uncomfortable questions: not least, aside from evidence polishing, what have the courts got that oligarchs want?
While treating Justice Secretary Chris Grayling like the legal equivalent of Comical Ali may make the judges and the profession feel better, there is an important point that needs to be borne in mind. It is not just politicians, with the Treasury’s arm firmly up their back, that wonder if the courts are too expensive to perform their function. Even courts need punters. The rule of law is not only threatened by governments. It can collapse under the weight of its own complexity and cost. The judges who understand this may not write great after dinner speeches, but it is their words that will need to come to the fore.