Who Should Pay for Access to Justice?

Amir Paz-Fuchs
Amir Paz-Fuchs

The summer of 2016 was an interesting one for those concerned with the state of access to justice in the UK. The House of Commons Justice Committee published a report that criticised the imposition of court and tribunal fees by the Government; and the Supreme Court struck down the residence test introduced by the then Lord Chancellor, Chris Grayling. Together, the message from two prominent branches of government, is a mixed one. On the one hand, it shows that the changes that the Government has put in place in recent years have been extremely detrimental for those are most in need of accessing the justice system. On the other hand, it shows that the battle is not lost. That the term – access to justice – still resonates strongly and holds sufficient sway to challenge government policies, and even to brand them as illegal. In this post, we focus on the Justice Committee report (hereafter: the report) and only note a few curious aspects concerning the Supreme Court ruling.

It is difficult to describe the Justice Committee Report as anything more charitable than a scathing critique of government policies in this area, an assessment given further force by the fact that the Committee is chaired by a member of the Conservative party – Robert Neill MP. The report seems to be bewildered not only

Robert Neil MP
Robert Neil MP

by the decisions themselves and the impact on hundreds of thousands of court users, but also on the amateurish structure for fee remissions and the evidence based process (or, rather, lack thereof) following which the decisions were made. But notwithstanding the importance of the process, the changes themselves are striking in their audacity, and their implications. We note here the fees introduced in Employment Tribunals [ETs, EATs], Family Courts and Immigration Tribunals, each having special characteristics.

The rise of fees had the most immediate effect in Employment Tribunals. The MoJ Impact Assessment document from 2011 reveals that these were implemented with two main aims in mind. First, a “fundamental policy aim … to transfer a proportion of the cost of running the ET and the EAT from taxpayers to the users”. In fact, by the time the fees were implemented, in 2013, the government intended to achieve full cost recovery by “charging fees reflecting, or in some cases exceeding, costs incurred…” [para 10]. Second, to encourage the resolution of disputes outside of a tribunal. While the document does not explicitly mention the aim of discouraging weak or vexatious claims, it does mention the objective of encouraging claimants to make a more informed decision about the value of their claim. Moreover, a Department of BIS report, Resolving Workplace Disputes, from the same year, said in relation to employment tribunal fees that “a price mechanism could help to incentivise earlier settlements, and to disincentivise unreasonable behaviour, like pursuing weak or vexatious claims” [p. 50]. So what is the result of all these benign motivations? The Coalition government introduced employment tribunal fees in 2013, in two categories: ‘Type A’ and ‘Type B’. Type A claims, which are considered less complicated (e.g. unpaid wages) command £160 issue fees and £230 hearing fees (£390 in total); Type B claims, considered more complex (e.g. discrimination) require £250 in issue fees and £950 in hearing fees (£1200 in total).

The effects were dramatic: an overall drop of 70% in employment tribunal claims submitted following the introduction of fees, spread across all claim ‘types’: working time (78% drop); unfair dismissal (72%); breach of contract (75%); unauthorised deduction of wages (56%); sex discrimination (68%). Moreover, if the government did indeed expect that the introduction of fees will encourage the resolution of disputes through ACAS, the law of intended consequences worked in brilliant fashion here. The Justice Commission concluded, based on a considerable amount of evidence that “far from encouraging early conciliation and resolution of disputes, employment tribunal fees were having precisely the opposite effect, because there was no incentive for an employer to settle in cases where the claimant might have difficulty raising the fee” [64]. Indeed, an employment solicitor gave evidence that “When I advise an employer, why would they engage in early conciliation? You wait for the employee to pay a fee” [64]. As for vexatious claims, the government had no evidence of the proportion of such claims before, or after, the imposition of fees. Moreover, since the proportion of claims rejected was very similar before and after, there is little to suggest any impact on that front. It should be noted that despite this evidence, a legal challenge to the imposition of employment tribunal fees, brought by Unison, failed before the Court of Appeals, and is now before the Supreme Court.

In family courts, fees for divorce proceedings were enhanced from £270 to £410 in 2015, and to £550 in 2016. As the President of the Family Division, Sir James Munby, noted before the Commission, there can be no behaviour changing rationale for these fees. In fact, he stated, (at [87]) that

There are only two things that the justice system does where you have no choice but to use the system. One is divorce; the other is probate. …. Therefore, we have a captive market… I have to say that there is something rather unattractive—particularly if one is selling justice, which one should not be doing—in battening on to the fact that there is a captive market and that, because there is no elasticity of demand, one can simply go on putting up the fees until it becomes another poll tax on wheels.

Finally, the imposition of fees for Immigration Tribunals, and specifically – the extent of the increase, seems uniquely cruel. Fees were increased to a cost recovery level: for a decision on paper from £80 to £490; for an oral hearing from £140 to £800; and new fees, of £455 for permission to appeal to the Upper Tribunal, and £510 for the hearing, were introduced. There is little surprise that the combination of new fees amounting to hundreds of pounds, a six-fold increase in existing fees, all imposed on extremely vulnerable claimants, including asylum seekers, facing the power of the state – raised concern with the Commission.

The flip side of a fee imposition regime is a fee remission structure. But here, too, the Commission finds that the government plan is flawed. Without delving into the details, the way the government calculated a claimant’s disposable income for the purpose of assessing eligibility borders on the fictitious (see [76]). In addition, as the Council of Employment Judges noted, the low level of income necessary for remission eligibility will exclude many low paid workers in the care, security, hospitality or cleaning industries who previously claimed – successfully – unauthorised deductions in sums that were small, but significant to them [72].

Finally, it is worth mentioning the ‘evidence base’ aspect, or lack thereof, that supposedly facilitated the imposition of fees. The report dedicates a full section to the way the Government conducted itself in this regard. It cites senior members of the judiciary who were “scathing about the quality of the research used by the Ministry to inform its policy formulation” [49]. Indeed, their response refers to the research undertaken as “clearly inadequate” (para [26] to the response). In addition, the Master of the Rolls, Lord Dyson, has characterised the research as

Lord Dyson
Lord Dyson

“lamentable”; the Chairman of the Bar Council described it as “insignificant”; and the President of the Law society argued that it is “poor” [49]. Apart from the sad state of affairs, the fact that a central policy is implemented with so little appreciation of its effects on people’s rights, and people’s lives, suggests that it could have only been carried out due to a dogmatic view, that renders effects and consequences as insignificant. This stubborn approach, of the “my mind’s made up, don’t confuse me with the facts” variety, is not, one would hope, characteristic of policy making in the UK in general. But the strong hold of the neoliberal agenda trumps not only concrete, discrete, policies, but also policy making procedures and the rules of the game.

This latter point leads us to the aforementioned decision by the Supreme Court, in The Public Law Project (PLP). The PLP challenged the draft order put before Parliament by the Lord Chancellor, on 31 March 2014, which introduced a residence test as a precondition for eligibility for legal aid. It claimed that the order is ultra vires section 9(2) of the Legal Aid, Punishment and Sentencing of Offenders Act 2012 (“LASPO”) and is unjustifiably discriminatory in its effects. Both claims were accepted by the High Court, and both were rejected by the Court of Appeals. Writing for the Court, its President, Lord Neuberger, reversed again. He noted that while section 9(2)(b) empower the Lord Chancellor to “vary or omit services”, they do not empower him to “reduce the class of individuals who are entitled to receive those services by reference to a personal characteristic or circumstance unrelated to the services” [30], which is what the draft order seeks to do. Since he accepted the ultra vires argument, he saw no need to address the discrimination issue.

Although the ruling is ‘administrative’, and thus somewhat ‘procedural’, in its focus, there are two important points that may be made. First, although it is understandable, it is also somewhat unfortunate that the Court decided not to delve into the substantive argument. As I noted elsewhere, in an analogous context (a successful ultra vires argument that led to a DWP workfare programme being struck down): procedural challenges may often be more successful, but they are short lived. Indeed, in that case, that Government simply revisited the empowering legislation, created the necessary ministerial powers, and the Minister put in place new regulations to (retroactively!) legitimise the programmes. Substantive challenges, of course, are usually less successful, but if they are – cannot be addressed through simple, administrative measures.

The second matter that arises from the decision concerns the justification given by the MoJ for this policy. Here, as with the cost recovery policy scrutinised by the Justice Committee Report, we find the footprint of neoliberal and chauvinist thinking. As the Court notes, the residence requirement was first outlined in a MoJ paper, Transforming Legal Aid: Next Steps, published in 2013. In the Equality Statement, attached to that paper as Annex F, the MoJ described the “primary objective” of the residence requirement as being “to bear down on the cost of legal aid, ensuring that every aspect of expenditure is justified and that we are getting the best deal for the taxpayer”, and further stated that “the reforms seek to promote public confidence in the system by ensuring limited public resources are targeted at those cases which justify it and those people who need it” [6.3, quoted in the judgement at [14]). The first quote transforms public services to market services, by suggesting a hypothetical ‘contract’ between citizens and taxpayers, effectively viewing the former as ‘consumer-citizens’. The latter quote seems to be misleading: the residence test denies legal aid to some of the most needy claimants, such as migrants fleeing horrific situations, or women fleeing domestic violence. So, sadly, the only possible interpretation of the latter statement is that the residence test is intended to fence out not those who are not ‘in need’, but those whose needs ‘we’, the taxpayers, do not wish to address.

Amir Paz-Fuchs is a Senior Lecturer, Sussex Law School