Law and lore, and state failure – the quiet collapse of the county court system in England and Wales

(And, of course, it may not always be plain what the law actually is, in any case.)

Another theme of my blogging is state failure. By ‘state failure’ I mean the acts and omissions by and on behalf of public officials and public bodies that indicate fundamental and/or systemic failings.

Sometimes these state failings can be hidden deliberately from the public and indeed politicians and the media, and sometimes there is perhaps no need to deliberately hide them as too few people care. In either case the ultimate problem is either lack of resources or lack of accountability, or both.

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Over at Prospect I have done a piece that illustrates these two themes: the unsexy and perhaps uninteresting topic of local civil justice – and in particular, the county court system.

Please click and read here.

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I fell onto this topic by chance. I was looking at the transcript of the recent ‘liaison committee’ of the House of Commons for something I am writing about parliamentary accountability. This committee, comprised of select committee chairs, is one of the few recent improvements in holding the executive account, with its periodic examinations of the Prime Minister.

At the most recent session, I saw that the Justice committee chair devoted about half his allotted questions to the county court system. He could have chosen many other topics – from international law to prisons – but this was the subject he selected. That in turn led me to seeing that the justice committee has started an investigation into the county court system. Such an inquiry is welcome.

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The reason the county court system combines state failure (of which it is an example) with law and lore is that, for most people the county court system would be where they would enforce their everyday legal rights and obligations in respect of civil law – contract, torts, family law, property law, and so on.

Few people would be able to commence such litigation in the more expensive and exclusive High Court – just as few people would be able to lunch at the Ritz.

Of course, most people will not ever litigate. Indeed most people will happily go through their lives without attending a county court – or even knowing where their nearest one is situated.

But they will conduct themselves often on the assumption that certain rights and obligations can be enforced ultimately.

However, if the county court system continues to collapse, then that assumption will become increasingly academic. In essence, what people believe they can enforce at court will become more lore than law.

This is not to say that there will suddenly be anarchy and lawlessness: systems of customary oral law can be very enduring, and some systems of non-enforceable law can be rather resilient.

But eventually the mismatch between what is understood to be the law and what can actually be enforced will have some effect, and that effect will, in turn, modify behaviours – and in an adverse way.

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We are getting close to local civil justice not being meaningful to many in the community.

Let us hope that, unless local civil justice is somehow revitalised, that the lag between law and lore is a long one.

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