In their response to the Justice Select Committee inquiry into the effects of the introduction and the level of court and tribunal fees, Young Legal Aid Lawyers (YLAL) concluded that ‘individuals seeking access to justice should not be required to subsidise one of the Government’s most basic responsibilities’.
The inquiry has come as the Ministry of Justice (MoJ) released a consultation announcing the government’s intention to fund the entire justice system solely through fee income and plans to introduce another round of fee hikes. YLAL submitted in its response that as a central tenet of a democratic society, a fair and accessible justice system should be treated similarly to the NHS and state-schools and should therefore be funded through general taxation of the population, rather than by charging individual users at the point of need.
The government has also been criticised by JUSTICE, the all-party law reform and human rights organisation in the UK, for failing to properly assess the impact of the recent fee rises before suggesting new ones. This failure to take an evidence-based approach, JUSTICE suggest in their response to the enquiry risks breaching the principle under section 92(3) Courts Act 2003, the common law principle of access to courts and Article 6 of the ECHR.
The National Audit Office and Public Accounts Committee have also commented on the ‘limited nature’ of the impact assessment performed by the government recently, both in terms of the impact in access to justice and the knock-on effect on other departments. As such, any further fee increases are ‘premature’.
Both YLAL and JUSTICE are particularly concerned with situations where there is already an inequality of power between individual would-be litigants, including judicial review, immigration and asylum cases, property and tax.
In April 2014 the cost of applying for permission to apply for judicial review more than doubled, rising from £60 to £135. Permission to proceed increased by a staggering 216% from £215 to £680. The further 10% increase proposed by the government for civil matters would apply to judicial review.
In their inquiry response, YLAL suggested that applications for judicial review should be exempt, or subject only to nominal charges in recognition of the significant imbalance of power between public authorities and individuals.
It has also been suggested that the attempt to curb judicial review demonstrates an intention to ‘avoid judicial scrutiny of policy’.
In addition to the ‘considerable inequality of arms’ between the state and the individual attempting to challenge it, potential litigants in this area may add to their disadvantage not having English as a first language. According to JUSTICE, charging individuals significant fees ‘effectively penalises the individual twice’. The same inequalities of power exist in the areas of housing and tax.
Although at present it is not possible to state precisely the impact of government reforms of civil law, it is likely to be similar to the introduction of fees to employment tribunals, for which statistics are available.
Since 30 June 2015, 50,000 claims have been ‘lost’ to the fees. There were 83% fewer equal pay claims and 72% fewer sex discrimination claims. This particularly affects low paid women, according to Dave Prentice, General Secretary of Unison. The effect that a victim’s inability to afford to challenge sexual discrimination will have on the workplace in general is a grave concern.
Criminal courts charge
Anecdotal evidence suggests that the introduction of the criminal courts charge places pressure on those accused of crime to plead guilty for purely financial reasons. The difference in cost of over £1,000 between pleading guilty to an either way offence in the magistrate’s court (£180) and contesting a charge in the crown court (£1,200) demonstrates the financial incentive pleading guilty on those who are among the poorest in society and wish to avoid unaffordable debt.
The fact that the fees are set with no discretion for the magistrate to waive or reduce the fee based on the financial circumstances of the individual involved is ‘impractical’ and ‘wholly unreasonable and disproportionate’. The Centre for Justice Innovation has described this system as having ‘the hallmarks of a plea bargaining system’, which frequently leads to wrongful conviction.
The initial deadline of 30 September 2015 for responses has been extended, with submissions still being accepted. JUSTICE and YLAL have urged the government to commission independent research, to focus on improving efficiency of the courts rather than increasing fees and, if the current level of fees is further increased, that the disposable capital test to be amended so that an individual would not be required to spend their entire savings on court fees.
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