“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.