MPs have hit out at the government’s approach to increasing court fees, with major changes needed to restore an “acceptable level of access to the employment tribunals”, and also urged ministers not to introduce any more civil court fee rises until there is research into the impact of what has been done to date, particularly on London’s competitiveness as a litigation centre.
In a report published today, the justice select committee said it had “not appreciated being strung along” by the Ministry of Justice (MoJ) with the continuing delay in its publishing post-implementation review of the impact of the fees.
The introduction of issue fees and hearing fees for claimants in employment tribunals in July 2013 has led to a drop of almost 70% in the number of cases brought. The committee said it was “unacceptable” that the government has not reported the results of its review one year after it began and six months after it said it would be completed.
Making recommendations as best it could in the absence of the review, the committee called for:
- A “substantial reduction” in the overall quantum of employment tribunal fees;
- Replacement of the binary type A/type B categorisation of claims according to complexity;
- An increase in disposable capital and monthly income thresholds for fee remission; and
- “Further special consideration of the position of women alleging maternity or pregnancy discrimination, for whom, at the least, the time limit of three months for bringing a claim should be reviewed.”
On money claims, where the fee is now 5% of the value of the claim up to a cap of £10,000, the committee said it would be “unsatisfactory” if the MoJ were to increase the cap to £20,000 – as has been mooted – without analysing the impact of what has already taken place.
It added: “We recommend that the government review the impact of the April 2015 increase in fees for money claims on the international competitiveness of London as a litigation centre when sufficient time has elapsed, possibly two or three years, to enable that impact to be assessed.
“The government should not resurrect its proposal to double the £10,000 cap, or remove it altogether, unless such a review has been undertaken.”
Further recommendations included rescinding the increase in the divorce petition fee from £410 to £550, and introducing a pilot scheme in which there was a graduated or sequential system of fee payments whenever there were substantial fees payable in total in respect of a case in the civil of family courts or tribunals, allied with the requirement for the respondent to pay a fee.
The committee said the MoJ should also take up the Law Society’s suggestion that it should introduce a system for regular rerating of remission thresholds to take account of inflation, and that it should conduct a further review of the affordability of civil court fees and the remission system, considering means of simplification, for example through automatic remission for all basic rate taxpayers.
The committee said it was also “unwise” for the government to have brought forward proposals for fees set at a level to achieve full cost recovery in the Immigration and Asylum Chamber before having published its employment tribunal fees review.
Though it had no objection to the principle of court fees – “Some degree of financial risk is an important discipline for those considering legal action” – the report said the question was what was an acceptable amount to charge, taking into account the need to preserve access to justice. This would vary between jurisdictions and different types of cases, it said.
Factors which needed to be taken into account included the effectiveness of fee remission, the vulnerability of claimants and their means in comparison with respondents, and “the degree of choice which litigants have in whether to use the courts to resolve their cases and achieve justice”.
The committee argued that there should be a “clear and justifiable relationship in the fee system between these factors and the degree of financial risk that litigants should be asked to bear”.
Further, fees set at a level to recover or exceed the full cost of operation of the court would require “particular care and strong justification”.
Committee chair Bob Neill MP said: “Where there is conflict between the objectives of achieving full cost recovery and preserving access to justice, the latter must prevail.”
The quality of the evidence used by the government to justify its fee changes came under fire from many who gave evidence to the committee, in particular the senior judiciary.
Mr Neill said: “We understand the financial pressures on ministers in a department with unprotected spending. We also understand that the MoJ does not always have the luxury to be as rigorous and meticulous in preparing the ground for controversial policies as it might wish.
“But it is important that in such circumstances the ministry is frank about that fact and does not represent the quality of its evidence base to be higher than it is.”