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

Volume 774: debated on Wednesday 20 July 2016

Motion to Approve

Moved by

My Lords, the purpose of this draft order is to make changes to the fees payable in proceedings within the civil courts and tribunals. Specifically, the order introduces a new consistent fee-charging approach across the property chamber of the First-tier Tribunal. The current structure that operates in the tribunal is complex and inconsistent, with a range of different fees charged for some application types and no fees charged for others.

Our changes will simplify and standardise the approach, reducing the burden on the general taxpayer by raising the overall recovery rate in the tribunal from around 4% to around 10%, and sharing that burden more equally between all those who use the tribunal. The order will also uplift a number of fees charged in the civil and magistrates’ courts by 10%. This will include all those fees which are currently at full-cost recovery levels, including, for example, the fees for judicial review proceedings—but the uplift will not apply to fees in civil proceedings that are already set above cost. The uplift will also apply to judicial review proceedings heard in the immigration and asylum chamber of the Upper Tribunal to ensure that the fees in judicial review proceedings are consistent across jurisdictions. Finally, the order will change the default classification of two new appeal rights that have been created in the employment tribunals from a type B claim, which attracts the higher fee, to a type A claim, for which the fee is lower.

The normal rule is that where those who use a public service are charged a fee to access it, those fees should be set at a level designed to recover the full costs of the service. The civil and family courts have operated on that basis for a number of years. Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 provides that the Lord Chancellor may prescribe fees above cost, but requires that those fees are used to finance an efficient and effective system of courts and tribunals. This power was used for the first time in March last year to increase the fees for money claims, and again earlier this year to increase the fees for possession claims, for general applications in civil proceedings and to make an application for a divorce or a dissolution of a civil partnership. The power will be exercised again in this order to increase the fees in a range of civil proceedings by 10%, which will take those fees above cost-recovery levels. The remaining fee changes contained in this order will be made using the powers of Section 42 of the Tribunals, Courts and Enforcement Act 2007, given that, even after these changes, the fees will remain well below cost-recovery levels.

Why are the Government taking these steps and why are they necessary? The case for revisiting the fees that we charge in the courts and tribunals is based firmly on the need to ensure that Her Majesty’s Courts & Tribunals Service is properly funded in order to protect the crucial principle of access to justice. A fully functioning and properly funded justice system is the foundation of our democratic society. Not only does it provide everyone with the ability to redress their problems in an efficient and effective forum, it underpins our growing economy.

This Government have committed to an historic investment of more than £700 million to transform our courts and tribunals system. The scale of this investment and the ambition of our reform will enable us to build a justice system that is simpler, swifter and more efficient, using modern technology. There is, however, only so much that can be done through cost-efficiency measures alone. If we are to secure the sustainable funding of the courts and tribunals we must also look to those who use the system to contribute more, where they can afford to do so. It is for this reason that we have had to look again at the balance between what users pay towards the overall cost of the Courts & Tribunals Service as compared with the financial burden that falls on the taxpayer.

The measures set out in this order will, we estimate, generate around £5 million per annum in additional income, with every pound collected spent on providing our system of courts and tribunals. While I recognise that fee increases are not popular, I hope that noble Lords will recognise that they are required to protect the vital principle that justice is protected. I therefore commend this draft order to the House and I beg to move.

Amendment to the Motion

Moved by

At end insert “but that this House regrets that, notwithstanding the recommendation of the House of Commons Justice Committee that access to justice should prevail over generating revenue when the Government are setting court and tribunal fees, the Government continue to increase the already enhanced fees, which exceed the full cost of the provision of court and tribunal services.”

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”,


“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.

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.

My Lords, I first commiserate with the noble and learned Lord, Lord Keen of Elie, in having to lie upon another bed of nails. Through him, I also congratulate the right honourable Liz Truss MP on her appointment as Lord Chancellor, a great office of state whose origins may be traced to Anglo-Saxon times. In her study of the office, Diana Woodhouse observed that there were no qualifications for Lord Chancellor—that any man or woman could be Lord Chancellor, although in modern times it was always a senior and distinguished lawyer. As your Lordships know, that changed in 2005 when Parliament enacted the Constitutional Reform Act. Section 2 says that a person may not be appointed as Lord Chancellor unless he or she,

“appears to the Prime Minister to be qualified by experience”.

Being a lawyer is not a requirement, although a non-lawyer needs to have the rule of law in his or her political DNA. That was made clear in the 2005 Act’s reference to the Lord Chancellor’s continuing constitutional role in relation to the rule of law.

The noble Lord, Lord Faulks, and the noble and learned Lord, Lord Falconer, among others, have criticised the new Lord Chancellor for lacking the necessary experience to uphold the rule of law; indeed it seems that the noble Lord resigned for that reason. But the new Lord Chancellor should in fairness be given time to be judged by her actions in office. She cannot be criticised for the Motion and the amendment tabled by the noble Lord, Lord Beecham, which I strongly support. The mischief of which he rightly complains derives from previous Lord Chancellors—Chris Grayling and Michael Gove. It is part of the continuing assault by successive Governments on access to justice.

Law care is as important to our well-being as healthcare, but it is no longer within the reach of most people. Law centres report people collapsing from lack of food because they are unable to contest benefits sanctions. Parents are unable to challenge their children being taken into care or put up for adoption. Unscrupulous employers sack workers knowing that they cannot afford tribunal fees.

The cost of going to courts and tribunals is exorbitant because of swingeing user fees—rightly described by previous speakers as a tax on justice—even in cases involving alleged race and sex discrimination or claims for asylum by victims of political persecution. For claims involving unfair dismissal discrimination, whistleblowing or equal pay, claimants must foot a bill of £1,200 on top of their legal fees. Asylum fees for a full First-tier Tribunal hearing are £140 and it is proposed to increase them by 472% to £800.

These are exorbitant taxes on justice. As the noble Lord, Lord Beecham, said, it is a matter for regret that under the coalition Government the Treasury sought, for the first time ever, to make a profit from people seeking to enforce their legal rights, granting the Lord Chancellor the power to prescribe fees above cost. The noble and learned Lord, Lord Keen, described that tax on justice as necessary to secure access to justice. I hope that he will not mind my saying that that is an example of irrationality in the Wednesbury sense—a defiance of accepted moral standards, among other things. When the proposals were announced, the noble and learned Lord the Lord Chief Justice of England and Wales warned that the Government had made “very sweeping” and “unduly complacent assumptions” about their likely effect on access to justice. Successive Governments have treated legal aid as the Cinderella of the welfare state, an easy target of Treasury raids. Access to justice is seen as a luxury rather than a necessity underpinning our way of life, yet it is central to the rule of law.

Without going into too many figures, I would like to add some to what has been said already. The order introduces 10% fee uplifts across civil and magistrates’ courts. A contested hearing has increased from £515 in 2014 to £567 in the magistrates’ court, from £280 to £308 in the county court, and from £480 to £528 in the High Court. Those are increases well above inflation, and are cumulative. The request to reconsider at a hearing a decision on judicial review permission in civil proceedings cost £180 in 2008 in comparison to £770 today.

Fees act as a deterrent to bringing a claim to court. They dissuade people with legitimate grievances from coming to court. As your Lordships have heard, last month the House of Commons Justice Committee reported how fees in employment tribunal cases had led to a “startling drop” of cases brought, by 67%. That includes a decline in claims for breaches of the working time directive, unauthorised deductions from wages, unfair dismissal, equal pay, sex discrimination—the list goes on.

Fees prevent or deter people from articulating and enforcing their rights to a minimum standard of treatment in the workplace. As the Minister may well know, employment tribunal fees are being abolished in Scotland. I wish the same would happen in England and Wales. The risk of losing their case or getting a partial costs order is one that many vulnerable and low-income claimants cannot take, no matter how egregious the wrong they have to suffer. Some claimants have to choose between stumping up the fee and paying for a lawyer. Many end up without legal assistance. Others will get payday loans to assist with their claims, and then are saddled with debt and have to pay interest to exercise their right to justice. The upshot of all that is that the justice system is too expensive for traders, small businesses and the victims of personal injuries and of unscrupulous employers. There is a risk that parties with deeper pockets will deny liability on the basis that claimants are unable to fund court fees.

I am also concerned by the increase in fees to judicial review applications in civil proceedings. The fee for permission to proceed with a judicial review will increase from £700 to £770. The Government already have sufficient safeguards against abuse of judicial review proceedings. As has also been said, the fee uplifts in immigration and asylum cases are particularly worrying. The Law Society warns that higher fees for immigration and asylum cases may encourage individuals who cannot afford fees to risk criminal prosecution and illegal overstay.

The Government are introducing fee increases before the publication of the impact review on employment tribunal fees and before responding to the Justice Select Committee’s report on the impact of fee increases, despite 93% of respondents to the Ministry of Justice’s enhanced court fees consultation having disagreed with the proposal to uplift all civil fees by 10%. It is also questionable whether the increased fees will create £6 million in additional income, as the Government claim. Since fees were first introduced in 2014, judicial review applications have fallen from 15,600 in 2013 to 4,680 in 2015. I have already mentioned the 67% drop in employment tribunal applications. The 10% increase in fees will discourage more litigants.

Justice is a necessity, not a commodity. We should, as the amendment of the noble Lord, Lord Beecham, states, and his powerful speech underlined, certainly express our regret. The Government have ignored the wise counsel of the Commons Justice Committee that access to justice should prevail over generating revenue. Instead, they continue to increase the already enhanced fees and have set them above cost. That is deplorable.

My Lords, I start by returning to the matter of Ms Truss being made Lord Chancellor. I share the view of lawyers in this House that it is regrettable that Lord Chancellors are no longer people with substantial legal experience. I regret that it was a Labour Government who changed that practice and the way it was done. However, I object to people feeling that Ms Truss is somehow short of the substance necessary for the role. I was very disappointed to hear the noble and learned Lord, Lord Brown, suggesting that she was not overburdened with experience in court matters. Were the men of law as vociferous when Mr Grayling or Mr Gove took up their appointments and did they make the same complaints when it was a man in that role? We should look at whether we are seeing something inappropriate about a woman taking this role. I regret that we have heard a clamour of male lawyers and judges saying that this is not a suitable appointment when they made no such complaints when men were put into that role. I welcome the appointment of Ms Truss, given the current rules.

I turn to the Government’s Motion. It is an assault on access to justice that they are seeking to do this yet again. Only last year, the Justice Committee examined the issue of tribunal fees and made it very clear to Parliament that the level of fees charged for bringing cases should be substantially reduced and that no fee should be charged if the amount claimed was below a certain level. It was particularly concerned about cases dealing with unpaid wages or people not getting their holiday pay, so the sums of money were not great but an injustice was taking place and employers were behaving badly. Of course, there are thresholds for fee remission, but the bar is too low; the committee made it very clear that too few people could claim fee remission.

The committee expressed special concern about how that impacted on women bringing cases. That is what I want to emphasise today. Women are having particular problems with this provision. Women alleging maternity or pregnancy discrimination, where some excuse is found for easing them out of their jobs, not letting them return after they have had children, want to bring a case, but the time limit is too tight and they are considerably put off by the cost to them, often at a time when money is sparse because they are at home with a newborn.

The Court of Appeal has been dealing with a test case, which I know is going to the Supreme Court, but the decline in the number of claims and tribunals since the introduction of fees has been startling—that word has already been used. We should analyse the cause of it and look at how it is impacting on women getting justice in the system. We have struggled over the past 30 years to address the problems that women have in bringing such cases. I fear that we are making it more difficult for women to use the justice system fairly. There has been a decline of 72% in unfair dismissal claims, and we must ask why. I know that the Government claim that this is one way to deal with vexatious litigants, people who bring cases that are unworthy. When examined, one finds that there has not been an increase in successful cases. If you take out what are supposed to be unworthy cases, you would expect those that remain to be much more successful, but that is not the case. So it has not achieved the Government’s aim. There has been a 68% decline in sex discrimination cases.

Women are particularly at the receiving end of injustice because of this shift to put the burden on to those going to court. I often tell the story of how my mother was the great influence on my deciding to become a lawyer because, when I was an adolescent, she experienced an accident. Out of the blue, a slate came off the roof of a derelict tenement in Glasgow and split her head open; she almost lost her eye. She was frightened to go to lawyers or take a case because she thought it would cost too much money and she did not know whether she had a claim or not. Despite encouragement, she was fearful.

The fear exists to this day, particularly among women, about establishing their rights. We will not secure justice for women by this increase in fees. It is an attack on justice and women’s access to justice, but it goes beyond women, as others have said. I support the amendment of the noble Lord, Lord Beecham, and I hope that the Government will look at this again.

My Lords, our new Lord Chancellor needs urgently to address the level of fees for access to courts and tribunals, for all the reasons given by the noble Lord, Lord Beecham, and in all the other speeches that the House has heard, after the speech of the noble and learned Lord, Lord Keen. Like the noble Baroness, Lady Kennedy of The Shaws, I welcome Liz Truss to her new role as Lord Chancellor. It is an important role. She has a statutory duty to protect the rule of law.

The noble Baroness, Lady Kennedy, mentioned that Liz Truss is a woman and expressed concern that that may have provoked some of the hostility. I should point out that, contrary to reports, Liz Truss is not the first female Lord Chancellor. Lord Campbell, in his 19th century Lives of the Lord Chancellors, included Queen Eleanor, wife of Henry III. In 1253, in the king’s absence abroad, Eleanor performed all the duties of the office, judicial as well as administrative, for the best part of a year. No doubt a 13th century Lord Falconer complained that Eleanor had not been trained as a lawyer and that she had not previously served as a senior Cabinet Minister. I am prepared to see how Liz Truss performs in her office before criticising her—or indeed criticising the Prime Minister for appointing her. The new Lord Chancellor’s attitude to court fees will for me be an important test of her commitment to the rule of law.

Like my noble and learned friend Lord Brown of Eaton-under-Heywood, I have appeared in previous debates on this subject. I do not have his complete record of attendance, but I have appeared on a number of these occasions in support of the noble Lord, Lord Beecham. I have explained repeatedly my concern about the Government’s policy on fees for courts and tribunals. It is a very simple matter. The high levels at which fees are set undoubtedly impede access to justice for legitimate claims. It is as simple as that; potential claimants cannot afford to vindicate their rights. The inevitable consequence is that debtors and rogue employers are encouraged not to meet their obligations because they know that they will not be taken to court or to the employment tribunal.

It is not appropriate for the Lord Chancellor of this country to stand in the doorway of the Royal Courts of Justice or of the employment tribunal and say to those who want to claim for unfair dismissal, or say to the small business person seeking to recover a debt, “You can’t come in unless you pay me a sum that greatly exceeds the cost of dealing with your case”. I recognise that Parliament has given the Lord Chancellor the power to do precisely that, but I do not think that it is wise for a Lord Chancellor to exercise that power. I am certainly not persuaded by the creative argument of the noble and learned Lord, Lord Keen, that the fee increases promote access to justice. That is a quite remarkable argument that your Lordships have heard this evening.

I am particularly concerned by the contents of the report published by the House of Commons Justice Committee on 14 June, entitled Courts and Tribunals Fees, HC 167. It is a remarkable document, and I have these questions for the Minister based on that report. First—and I echo the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in this first question—does the Minister accept the principle stated by the Justice Committee in paragraph 46 of its report:

“Where there is conflict between the objectives of achieving cost-recovery and preserving access to justice, the latter objective must prevail”?

Does he accept that?

Secondly, does the noble and learned Lord accept the conclusion of the Justice Committee at paragraph 50 of its report that the senior judiciary was correct in its evidence to the Ministry of Justice that the research conducted by the ministry before formulating its policy on court and tribunal fees was inadequate to justify the ministry’s proposals?

Thirdly, does the Minister accept the Justice Committee’s conclusions at paragraphs 58, 59 and 79 of the report that it is “unacceptable”—its word—that the committee was “strung along”—again, the committee’s words—by the Government’s refusal to publish its own review findings on the impact of employment tribunal fees, and that those findings must be published now without any further delay? I have to say to the Minister that the Government’s conduct in not publishing review findings that they obtained several months ago on a matter of considerable importance is quite disgraceful. Will the Minister apologise on behalf of the Ministry?

It has been traditional in these regular debates on this subject—regular debates on the injustices perpetrated by a Ministry of Justice—for noble Lords to have the pleasure, and it has been a real pleasure, to listen to the eloquence of the noble Lord, Lord Faulks, in defence of the Government’s position. I am very pleased to see him, although he is not in his usual place but in his new place on the Conservative Benches. Your Lordships know that the noble Lord resigned last Thursday. All of us at the Bar have had the irregular experience of being asked to present hopeless cases. The noble Lord, Lord Faulks, did that with charm, good humour and sensitivity several times a month. We will all miss him in his role as the acceptable face of the Ministry of Justice—as Chris Grayling’s and Michael Gove’s representative on earth, in the real world, where small businesses seek to recover debts and unscrupulous employers evade their duty to make redundancy payments. For every unjust policy that the noble Lord had to defend in this House, I suspect that there were at least three other impossible policies that he had refused to believe in and fought off before breakfast every day.

The Government are very fortunate still to have the services of the noble and learned Lord, Lord Keen, but I suspect that even his skills of advocacy will be severely tested by the brief that he has inherited this evening. I shall listen very carefully to his defence of government policy before deciding whether to support the noble Lord, Lord Beecham, in the Lobbies should he decide to divide the House.

My Lords, I begin by thanking the noble Lord, Lord Beecham, for his kind words. I am pleased to be here to speak on behalf of our new Lord Chancellor, and I speak with confidence. The noble Lord referred to a report or review that had been put in the hands of the Minister—and, for reasons that he elaborated on, he will appreciate that it is not in my hands. That review has—and it is a matter of considerable regret—taken longer than had been anticipated; but it will be published in due course.

One point of very real interest was the emphasis on fees in the context of the employment tribunal.

I am sorry to interrupt the noble and learned Lord so early, but is he going to say more about why the report is not now being published? What is holding it up? What is the delay?

I understand that it has to be approved at a ministerial level before it can be published. The noble Lord, Lord Pannick, will appreciate that there has been something of a delay in respect of those matters. As I say, it will in due course be published.

Much has been made of the matter of employment tribunals and fees in employment tribunals and the issues that arise there. I suppose that one has to answer for the sins of one’s fathers. The present order addresses fees in the employment tribunal, and does so only in one respect, and that is to reduce them—and why that should be a matter of regret rather escapes me. The one matter addressed in this order with respect to employment tribunal fees is that, in respect of certain specified appeals, they should not by default go into type B of the schedule to the relevant order, but into type A, thereby attracting a much lower level of fee. So I find it difficult to understand why that provision is such a matter of regret.

Let me put the matter of costs and fees into context. The total cost of the courts and tribunals in 2015-16 was about £1.9 billion. The income recovery was about £700 million, leaving a shortfall of about £1.2 billion, and the question is where that should fall—on the taxpayer in general or on those who use the courts in part. With regard to employment tribunals, the total cost incurred was £66 million and the fee recovery was a gross £12.8 million. Why do I say gross? It is because there is a very effective fees remission system which meant that fees to the extent of £3.9 million were remitted. The majority of those individuals who secured remittance of fees were women. So that system is working: those who are vulnerable or in financial difficulty have access to the fees remission system.

I acknowledge that the number of applications to the employment tribunal has dropped, but one has to take into consideration that more or less at the same time the introduction of a conciliation service has resulted in more than 80,000 applications in the first year for conciliation prior to procedures within the employment tribunal. That, I suggest, has a bearing on the numbers going on to the tribunal. There has been success there.

I cannot accept the observations of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that this is a case of profiteering. It is a case of determining a matter of balance. It is a case of facing up to the necessity to finance an effective and accessible system of courts and tribunals.

The noble Lord, Lord Lester, referred to the suggestion that there had been a dramatic fall in the number of applications for judicial review as a consequence of the introduction of fees. I would suggest that there is more to that than meets the eye. In fact, the reason there was a sharp reduction in applications lodged in the civil courts in respect of judicial review is reflected in the policy change which moved the responsibility for assessing applications for the vast majority of immigration and asylum judicial reviews from the civil courts to the Upper Tribunal chamber dealing with immigration and asylum. It is interesting and, indeed, noteworthy that the figures indicate that, between 2013 and 2014, the number of applications in the civil courts dropped from about 9,377 to 1,783, while at the same time they increased in the Upper Tribunal from 7,841 to 15,179, but I add this caveat: the latter figures are based on the financial year whereas the former figures are based on the calendar year. However, there is a fairly obvious correlation to the extent of a 7,000 decrease and a 7,000 increase in the number of applications.

The noble and learned Lord said a little earlier that the question is whether the taxpayer or those who use the system should pay. Does he not understand that the problem is not those who use the system but those who cannot afford to use the system? Is he not in difficulty in making the kinds of points he has made when he says that the Government have not published the review of the system and will do so only in what he calls “due course”?

I do not believe that that difficulty arises. I emphasise the point that I made earlier: if you look, for example, at the fees in respect of the employment tribunal, the gross figure is £12 million-plus; the sum remitted for those who could not afford the fees is £3.9 million. In other words, something of the order of 30% of employment tribunal fees came under the remittance scheme. It is working. It is effective. It is allowing access to those tribunals for those people who could not otherwise afford it.

I turn to the points made by the noble Lord, Lord Pannick, and the three questions which he posed in the context of the Justice Committee’s June report. We welcome the report from the Justice Committee. We will consider it in detail. We will consider its conclusions. We will respond to it as it requested, and we anticipate responding by September this year in accordance with the Justice Committee’s wishes. It would not be appropriate for me to anticipate that response at this time.

As the noble Lord, Lord Pannick, observed, there are instances in which some of our greatest advocates will take on the most hopeless of cases, and I applaud the noble Lord, Lord Pannick, for stepping forward to take into court the issue of Article 50 and its exercise in the context of our exit from the European Union. I look forward with interest to the outcome of his efforts in such hopeless endeavours.

Are the Government going to look at whether there are particular impacts that these changes are having on women? The Minister has not responded to that question.

That matter is the subject of comment in the Justice Committee’s report, and we will respond to it. I again emphasise that from the figures we have it is clear that a large proportion of women qualify under the fees remittance scheme and to that extent have that relief.

My Lords, I thank all noble Lords who have spoken in this debate, and I thank the Minister for his reply. He has given something of a hostage to fortune in his reference to employment tribunal fees. It will be surprising—although not, I suppose, impossible—if the Government do not, after having considered this matter for a year so far, come up with some proposals to increase those fees, the extent of which remains to be seen.

It is extraordinary that the Minister made no substantive defence whatever to the criticisms of the process that were made by, among other bodies, the Justice Select Committee. I quote from its report:

“It will be evident from the chronology”,

regarding the time that had elapsed, which I referred to before,

“that there are some inconsistencies in the Government’s account of the progress of its review into the impact of employment tribunal fees. It is difficult to see how a Minister”—

not this Minister—

“can urge his officials to progress a review which they apparently submitted to him 4 months or more previously. And even if Ministers may now be discussing how to proceed … and recognizing that Departments other than the Ministry of Justice have an input into this, there can be no compelling reason to withhold from public view the factual information about the impact of the introduction of employment tribunal fees which will have been collated by the review. There is a troubling contrast between the speed with which the Government has brought forward successive proposals for higher fees, and its tardiness in completing an assessment of the impact of the most controversial change it has made … We find it unacceptable that the Government has not reported the results of its review one year after it began and six months after the Government said it would be completed”.

On that basis, and with respect to the Minister, we can have little confidence in the outcome of that aspect of the matter or in other decisions that have been made. In these circumstances, I wish to test the opinion of the House.

Motion agreed.

House adjourned at 8.49 pm.