Courts and Tribunals: Administration Charges

Lord Beecham Excerpts

Monday 16th January 2017 Lords Chamber

[Lord Beecham (Lab)]

My Lords, first, I declare my interest as an unpaid consultant in my former solicitor’s practice, and I suppose I should mention that my daughter practises in the fields of housing and employment law, and sits as a part-time deputy district judge. I join others in congratulating the noble Baroness on securing this debate. Her initiative is the more welcome coming, as it does, from a respected occupant of the Government Benches.

Access to justice has been an all too regular subject of debate in my six and a half years’ membership of this House, with the coalition and Conservative Governments laying down road blocks in the form of huge increases in fees where they already existed, new impositions where—as in the case of employment tribunals—they did not exist and savage reductions in legal aid, to which noble Lords have already referred. Senior members of the judiciary have repeatedly complained, rightly, that these measures have led to a significant increase in the number of cases in which parties are not represented, with the consequent legal equivalent of bed-blocking wasting the time of the courts and proving the validity of the old maxim that justice delayed is justice denied.

A year ago, the then Master of the Rolls, Lord Dyson, giving evidence to the Justice Select Committee, described the evidence on which the Government based their increase in court fees as “hopeless” and pointed out that they had consulted all of 31 people on the proposal. Sir Ernest Ryder, in charge of employment and immigration tribunals, pointed to the 70% reduction in tribunal applications, which he described as,

“an extraordinary position that demands an explanation”.

Needless to say, no such explanation has been vouchsafed. In one sense, of course, the explanation is simple: the fee can be as much as £1,200.

The Civil Justice Council had warned that the,

“reductions and changes in legal aid will have the most serious consequences. This is not simply because of their scale, it is also by reason of their design and incidence. Among other things they will have a disproportionately adverse effect on the most vulnerable”.

It forecast correctly that,

“the number of self-represented litigants will increase, and on a considerable scale”,

leading to cases being longer than they need to be, and with,

“increasingly wide and serious of consequences for the individual, for families, and the state”.

Indeed, there have been large reductions in important areas of the law, including housing, where there has been a reduction of 18% in cases at a time when there have been record numbers of repossessions of private rented property. Some 43,000 households were evicted in 2015—an all-time high and 53% more than in 2010. Legal aid is available in housing eviction cases, but the problem here is the collapse of the supply side in the shape of legal aid lawyers specialising in housing law, such that there are areas of the country with very few legal aid housing lawyers and in a couple of cases, Suffolk and Shropshire, none at all. One-third of legal aid areas have just one solicitor providing legal aid in housing cases. As Legal Action Group director Steve Hynes observed:

“Civil legal aid services are in freefall, with solicitor firms and advice agencies closing”.


Given that even where legal aid is available fees are only £57 per hour, or £63 per hour for a court appearance, it is hardly surprising that not too many people are practising. My charging rate when I was last in practice 13 or 14 years ago was higher than that, and I venture to surmise that the Minister’s charging rate at the Scottish Bar might have been somewhat higher still. Interestingly, McKenzie Friends, unqualified people assisting litigants, are now charging as much as £125 an hour for their services. Shelter has 17 offices offering legal assistance, some of them being the only source in their area.

So how much have the Government been saving from the impact of the changes in housing law? How much have council housing and other budgets such as those for benefits and social care been affected as a consequence of evictions and disrepair, which might otherwise have been dealt with via the justice system? In the area of family law there has been a significant drop in cases where domestic violence, which could trigger legal aid, is not an issue, so that in those cases legal aid is not available. However, the much-vaunted alternative to court proceedings, mediation, has fallen by two thirds. The people most likely to be affected by that are, of course, women and children. Mental health cases have also declined—due largely, it again appears, to a shrinking of the supply side of legal advice, as in housing. Debt and welfare cases have seen large reductions of 61% and 56% respectively. Nor are these difficulties confined to individuals. Small businesses also face difficulties from higher court fees.

The Justice Select Committee’s report was damning about the Government’s policy. It is unlikely to have been impressed by what passes for the Government’s reply, published five months later and consisting of four full pages and five other pages containing a total of all of 15 paragraphs. One of those pages deals with the controversial proposal for immigration tribunal fees, and I am thankful that the Government have at least abandoned that proposal. The Government declared that they would publish their review of employment tribunal fees “in due course”. How long will this pretty simple issue take to resolve? How long does the Minister expect the review of pregnancy and discrimination claims to take?

The Government dismissed the committee’s concerns about the significant increase in the fees for issuing divorce petitions, saying that help is available for those unable to pay. But how widely is that known? In so far as the Government are right to claim that women are less likely to have to pay the full fee than men, is it not the case that by the same token they are less likely to be able to pay for legal advice and representation, thereby being placed at a disadvantage and increasing the problem of litigants in person, especially acute in cases of this nature?

In responding to the committee’s suggestion that there should a pilot of graduated fees, the Government declared that a balance had to be struck between the certainty of fixed fees and charging more for those who,

“make greater use of the courts and tribunals”.

Can the Minister explain this wording? Does “greater use” refer to frequency and, if so, in what sense, or content? Would an income-related or means-related system not be sufficient?

The committee suggested that in employment tribunal cases the respondent should pay, but the suggestion was rejected because respondents have,

“little influence over the decision to litigate”.

That is an interesting argument. A recalcitrant employer must not be troubled by paying a fee, but in many cases a dismissed employee must fork out with a fee that is disproportionate to the claim.

I mentioned immigration cases. Again, I welcome the fact that the Government do not propose to increase the fees, but already immigration judges report very high levels of unrepresented applicants, contrary to the impression given by the official statistics. The latter were questioned in a letter to Michael Gove by the Immigration Law Practitioners’ Association in 2015. Litigants in immigration tribunals will often suffer the additional difficulty of being unable to speak English.

The Government have been pressed time and again to review the working of LASPO but so far have resolutely resisted, and insist that they will do so only after five years of the Act’s operation. Given the scale of concerns and the time that such a review will take, why will the Government not now set a review in train, at least in respect of the most contentious areas?

I conclude with three further short points. The first is to remind the House that the Government’s proposals on the increase of the small claims limit is likely to engender still more problems for would-be litigants and a further depletion of qualified lawyers willing to undertake cases.

The second is that the closure of courts imposes additional costs on parties who now have to travel to have their cases heard.

Thirdly, I commend the work of the Public Support Unit, which has been mentioned today, whose staff and volunteers do valiant work in non-legal support of litigants in person as they encounter an unfamiliar and daunting experience in the 13 court centres that it supports. Will the Government at the very least help this organisation as it attempts to help those whose access to justice has been made ever more difficult by this Government and their coalition predecessor?