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“Adverse impact on access to justice”: Justice Select Committee reports on courts on tribunal fees – a summary by Grahame Anderson

The House of Commons Justice Select Committee has
published
its report on courts and tribunals fees this morning (20 June
2016).

The terms of reference for the report were to consider the
impact of increased court fees and the introduction of employment tribunal fees
on access to justice. The report sets out a detailed legislative history of
tribunal and civil court fees and the mechanisms by which remission can be
sought in the various courts and tribunals.

In sum, the report is damning about the effects of fees on
access to justice, in particular on access to employment tribunals for those
with meritorious cases.

Some of the key points in the report as it related to
employment tribunals:

  • The principled position from which the committee
    approached the question of fees was that it was legitimate to have some form of
    fee structure: “
    Some degree of
    financial risk is an important discipline for those contemplating legal action,
    and a contribution by users of the courts to the costs of operating those
    courts is not objectionable in principle: the question is what is an acceptable
    amount to charge taking into account the need to preserve access to justice

    (paragraph 45).
  • Recognising that costs recovery and the charging
    of enhanced fees are enshrined in the legislation, the committee took the view
    that “
    Where there is
    conflict between the objectives of achieving cost-recovery and preserving
    access to justice, the latter objective must prevail
    ” (paragraph
    46).
  • The committee took the view that the quality of
    the research that had preceded government changes on fees was insufficient,
    agreeing with criticisms made of it by the Master of the Rolls, the Chairman of
    the Bar Council and the President of the Law Society (paragraph 50).
  • The committee is critical of the government’s
    failure to publish its own report on the impact of fees. Indeed, the evidence
    the committee received indicated that publication would be imminent – leading
    them to delay publication of the report – only to have it indicated later that
    that was not the case. In the committee’s words “
    We have not appreciated being strung along in this fashion;
    it has been detrimental to our work and occasioned public speculation about the
    reasons for the delay in production of our own report

    (paragraph 59).
  • In its evidence to the committee, the government
    asserted that, since 83,000 cases a year are being disposed of through early
    conciliation, access to justice is not being adversely affected by tribunal
    fees. The committee finds that to be “
    even
    on the most favourable construction, superficial”
    (paragraph 69).
  • It concludes that the existence of tribunal fees
    dissuades employers from seeking to conciliate in some cases (paragraph 69).
  • Most damningly, the committee concludes that the
    introduction of tribunal fees has had a “
    significant
    adverse impact on access to justice for meritorious claims
    ” (paragraph 69).
  • Accordingly, the committee recommends (in
    paragraph 79):
    • A
      significant reduction in the overall quantum of fees;
    • The
      abolition of the current Type A / Type B classification of cases for fees
      purposes;
    • A
      simplification of the fee remission process, including by requiring only one
      application for both issue and hearing fees;
    • Extending
      the three-month time limit for (at least) maternity and pregnancy
      discrimination cases.

For those of us in the employment
tribunals on a day-to-day basis, there is much to be welcomed in this report.
We may welcome it, but will the government do anything about it? That looks
unlikely. As noted, it is still to publish its own report on the effects of
tribunal fees and this, of all weeks, is an excellent one for any government
seeking to bury an embarrassing select committee report.

Summary by Grahame Anderson.

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