Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 20th July 2016 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I intended to begin this speech by welcoming the multitasking noble and learned Lord, Lord Keen, to his first debate as a Justice Minister. It appears, however, from the published list of departmental Ministers that he is not in fact a Justice Minister but is, in effect, assisting the department. He deserves ministerial ranking within the Ministry of Justice and the House deserves that the spokesman for such a department should be accorded that status. The noble and learned Lord follows in the train of many distinguished Scottish Peers such as the noble and learned Lords, Lord Mackay of Clashfern, Lord Irvine of Lairg, Lord Falconer and Lord Wallace of Tankerness, to name but a few of those who are still with us. I am confident that the noble and learned Lord will not emulate the notorious 18th-century Scottish judge Lord Braxfield. He replied to counsel defending a man charged with sedition who observed that Jesus Christ was, like his client, a reformer:

“Muckle He made o’that—He was hangit”.

There is a biblical injunction which proclaims:

“Justice, Justice shalt thou pursue”.

To this the Government add an addendum: providing that thou canst pay in advance a fee equal to or greater than what would be required to ensure that the full cost or more of court and tribunal proceedings can be recovered for the benefit of the taxpayer. Access to justice, a principle which the Government purport to embrace, is however increasingly treated differently from access to other areas of public provision such as health or education, at least for the time being. Yet access to justice is crucial to the rule of law on which this country properly prides itself. Already eroded by savage cuts in legal aid and advice under the Legal Aid, Sentencing and Punishment of Offenders Act, it is now being eroded by a further round of significant increases in fees.

What makes matters worse is the way in which the Ministry of Justice has handled the issue. The latest round of increases was announced more than a year ago, subject to consultation. One of the most controversial areas has been that of employment tribunal fees, in relation to which the Government had last year commissioned a review, including a report on the impact of their earlier imposition of substantial charges, which they said would be completed by the end of 2015.

As paragraph 56 of the Justice Select Committee report pointed out, the review’s report was stated on 7 October by an official of the department to be in the hands of the Minister and that,

“it was hoped that the Minister’s position would be known by the end of the year”.

It was not. An FOI request for a copy of the report was declined on 29 December, with the comment:

“The review is currently underway and will report in due course”.

Successive requests were made to the then Minister, Mr Vara, on 9 February and 31 March, the latter seeking publication or at least the supply of a copy in confidence to the committee, without success. Nothing transpired and now Mr Vara has expired, politically speaking. Perhaps the Minister could tell us if and when the report will be published, for this is a sensitive and highly contentious area.

There has been, in the committee’s words, a “startling drop” in the number of applications as a result of the imposition of fees of the order of 70%. The committee was disinclined to accept as an explanation for this fall a greater reliance on conciliation, as to which the Senior President of Tribunals said that there was “clear behavioural material” indicating that employers were,

“avoiding engagement with conciliation processes”.

The committee concluded that the existing fee system,

“has had a significant adverse impact on access to justice for meritorious claims”,

not least in relation to claims by pregnant women for detriment or dismissal. What confidence, then, could one have in the range of new and increased fees imposed in this and other areas? There is to be an increase from £410 to £550 for divorce proceedings. Given that there is now no legal aid, this flat-rate charge will impact relatively more harshly on less well-off petitioners, at a time, of course, of acute emotional stress. The President of the Family Division, Sir James Munby, accused the Government of,

“battening on to the fact that there is a captive market”,

and,

“putting up the fees until it becomes another poll tax on wheels”.

Even more objectionable is the astonishing increase of 600% in fees to the Immigration and Asylum Tribunal—the original proposal was 100%, which is steep enough for some of the most vulnerable people here—which is likely, as the Law Society points out, to lead to more people overstaying illegally and risking criminal prosecution. Even under the present system, fees were remitted in only 5,600 cases, out of 41,000 applications. Then we have a 10% increase in the fees for civil claims, increases in fees levied in tribunals such as the general regulatory chamber, the property chamber and the tax chamber, and the particularly invidious increase in the fees for judicial review proceedings, where, after all, the Government themselves might well be the defendant. At the other end of the spectrum, the Justice Committee warned that increases in fees for money claims might well damage this country’s interests as a leading provider of legal and judicial services to foreign litigants, and thereby be self-defeating.

It was interesting to read the speeches of two Conservative MPs when this order was debated in the Commons. In addition to the forensic exposition of the chair of the committee, Bob Neill, John Howell criticised the Government’s failures to discuss changes with the judiciary and to adduce evidence for their proposals. Victoria Prentis endorsed the Justice Committee’s critique and referred to the 31-page guidance booklet provided to claimants seeking fees remission as exemplifying the problem. Research by Citizens Advice has demonstrated that only 29% of employment tribunal applicants were even aware that there was a remission scheme.

This is not the only area of the Ministry of Justice’s responsibilities in which such changes and increases in fees are being made. The Government are proposing substantial increases in probate fees for estates over £50,000, which will increase from a flat rate of £215 on estates over £5,000, to £20,000 on estates of £2 million or more, an increase of 9,200%. Currently the cost of running the Probate Registry is £42.5 million, and the fees produce £41.5 million. Therefore, it virtually pays for itself, and it is disingenuous to suggest that the increase in probate fees is in any way related to full cost recovery. If the Government wish to raise the £250 million they plan to receive from this fee increase, they should do so by adjusting inheritance tax by an appropriate percentage. This would avoid the ludicrous outcome of the new level of fees for an estate of £2 million being the same as for an estate of £20 million or £200 million.

In addition to the impact of the financial changes embodied in this order, we must not forget the issues raised last week when the noble and learned Lord, Lord Woolf, secured a debate on the impact on the rule of law of the cuts imposed on our justice system. One significant area of concern was the growth in the number of litigants in person, which leads to delays, adjournments and longer hearings, substantially reducing the efficiency of the system. These problems are worsened by the reductions in court staff, with full-time equivalent numbers down from 17,829 in 2013-14 to 16,286 in 2015-16, a reduction of 10%.

The Government’s record over access to justice, which stretches back to the coalition period, has favoured the interests of the powerful, from employers to insurance companies and others, as the cuts to legal aid and their actions over fees testify. Moves towards fixed costs in civil claims and clinical negligence cases echo the same approach. It will be interesting to see whether the Prime Minister’s claims for compassionate conservatism translate into action. The Government’s justice policies will provide an early test. I beg to move.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, this is the third time the Lord Chancellor has exercised the power afforded by Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 to prescribe what we all know now as enhanced court fees—fees which exceed the cost to the Courts & Tribunals Service of doing that for which the fee is being charged. On each occasion, the draft order has attracted, as today, a regret Motion in this House, and each time I have spoken to support that regret Motion. On the last occasion, on 15 March, I was the only speaker in the debate apart from the noble Lord, Lord Beecham, who moved the regret Motion, and the noble Lord, Lord Faulks, who resisted it. Today, alas, the noble Lord, Lord Faulks, is no longer in his place, but we are of course lucky enough to have as his replacement the noble and learned Lord, Lord Keen, who is a personal friend—I hope I am allowed to say this—and indeed a neighbour.

That said, with a new Lord Chancellor now in office—one perhaps not overburdened with previous experience of issues concerning the rule of law and access to justice—I return briefly to some of the things I said about the earlier enhanced court fees orders. First, there is a real case to make for objecting even to the principle of full cost recovery. The justice system exists for the benefit of society as a whole, and one may reasonably question why courts should be any more liable to self-finance than, for example, the police service, the fire service or any other public service. But put that thought aside: enhanced fees go altogether further than mere full cost recovery, and are hugely more objectionable. By definition, they are calculated—in both senses—to make a profit. They amount, realistically, to selling justice—on the face of it, contrary, as we all know, to Magna Carta, but regrettably now sanctioned by Section 180 of the 2014 Act.

As I observed in earlier debates, that Christmas tree of an Act contains 186 sections and 11 schedules, and occupies no fewer than 232 pages of the Queen’s Printer’s copy of the legislation, so it was small wonder that by the time we got to Clause 180, our usually impeccable and meticulous scrutiny of legislation had perhaps become somewhat lax and careless. The Government seek to justify enhanced fees on the basis that they are needed, according to paragraph 7.2 of the Explanatory Memorandum for the previous order,

“in order that access to justice is protected”.

But this rationale is, I suggest, entirely disingenuous, as it effectively turns that vital principle on its head. Of course Her Majesty’s Courts & Tribunals Service must be funded properly, so that it provides access to justice. But it manifestly does not follow that any part of that funding should be achieved by profiteering from certain selected parts of the service, least of all when that profiteering will hinder access to justice by discouraging at least some of those who would otherwise use these selected services.

Lord Dyson, Master of the Rolls, who retires next week—I express the hope here today that his courtesy title will be speedily translated into a full Cross-Bench peerage—in his oral evidence to the House of Commons Justice Committee on enhanced fees, emphasised that access to justice is the critical point here, and that,

“ordinary people on modest incomes … will inevitably be deterred from litigating”.

As the Justice Committee concluded in paragraph 46 of its report,

“the introduction of fees set at a level to recover or exceed the full cost of operation of the court requires particular care and strong justification. Where there is conflict between the objectives of achieving cost-recovery and preserving access to justice, the latter objective must prevail”.

How right it plainly is. As for the particular enhanced fees proposed by this order, I can find no “strong justification” for them, not by reference to the particular services for which it is proposed to exact them, still less by reference to the principle of access to justice. The order is indeed to be regretted. If the House is divided, I shall certainly support the amendment.