Those few of our readers who are inexplicably not committed followers of the House of Commons Justice Committee have missed a little cracker this week with the issue of its report on Court and Tribunal fees.
As everyone in the business knows, the introduction of fees in 2013 knocked the bottom out of Employment Tribunal case numbers, overall by some 70% in the following two years, and in relation to some categories of claim by as much as 78% (working time cases).
Following a series of judicial challenges, the Government found it politic to agree to undertake a review on whether fees had prejudiced access to justice, and/or had reduced the number of weak cases and/or had led would-be litigants to seek alternative (okay, cheaper) methods of dispute resolution.
Twelve months after it was started, and a full six months after its ETA, that review remains unpublished, even though the near-vertical drop in claim numbers can have little other tenable explanation. The Ministry of Justice has repeatedly failed to indicate when its review will appear, and there are some gratifyingly scathing comments in the Justice Committee report: “It is difficult to see how a Minister can urge his officials to progress a review which they apparently submitted to him four months previously“. One imagines some tense moments in the House of Commons bar over the coming weeks.
It is equally hard to avoid the conclusion that the Government’s review has found exactly what everybody told it at the time, i.e. that fees were too high, that people determined to bring vexatious claims would not be fussed about them anyway, and that the remission scheme was so complex and painful in its application that people would sooner just walk away, broken, rather like trying to get a delayed train refund out of Thameslink. There is also one particularly distasteful little nugget I had not previously known – your assets as assessed for remission scheme purposes will include any redundancy pay or pay in lieu of notice you have just received from your dismissal. Therefore, the mere fact of your dismissal can often make you ineligible for the fee waiver necessary for you to challenge it.
The Justice Committee (does that name sound as if they meet by candlelight, faces hidden in the shadows of their black pointy hoods, and each carrying a scythe, or what?) accepts at the outset that “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 [them] is not objectionable in principle“. However, the Committee was clear in its own findings – describing the Government’s evidence to it as “even on the most favourable construction, superficial“, it concluded that ET fees have had no material impact on the number of vexatious or frivolous cases, and that access to justice for those who needed it most has indeed been significantly prejudiced by the level of the fee charged.
So what next on the ET fee front? If we go for a Brexit this week, then this question will be the least of the Government’s worries. If we do not, then for a time at least, no one will care anyway. The prospect of change in the near future, therefore, seems pretty minimal.
The Justice Committee tentatively floats some tinkering with case categories, relaxation of the remission thresholds, and a basic fee of £50. Whether the additional claim numbers which might be expected as a result of that reduction would be sufficient compensation to the Treasury for the smaller fee is unclear, but the Committee was very clear on the point – “if there were to be a binary choice between income from fees and preservation of access to justice, the latter must prevail“. Brave words indeed, but nothing the Government has not been quite happily ignoring for a number of years.