Tag Archive | "ministry of justice"

Employment tribunal fees


It is some time since Chris Grayling left the post of lord chancellor but his influence continues to be felt as his poor judgments have to be reversed. Now we have another embarrassing example.

In a landmark decision handed down last Wednesday, the Supreme Court, in the case of R (Unison) v Lord Chancellor (2017), unanimously found that fees imposed under the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (‘Fees Order’), in respect of proceedings at the Employment Tribunal (‘ET’) and at the Employment Appeal Tribunal (‘EAT’), prevent access to justice and is unlawful.

As a result the government will have to refund up to £32 million to the thousands of people charged for taking claims to tribunal since July 2013, when fees were introduced by Grayling.

Fees were first imposed in the ET and the EAT by the Coalition Government in July 2013. The principal purpose of the Fees Order was to transfer some of the costs burden of operating ETs and the EAT to those who use the system. The aim was to encourage early settlement of claims and reduce the bringing of weak or vexatious claims.

The cases brought before employment tribunals in the UK range from unfair dismissal and equal pay to sex, age and racial discrimination. The total number of cases peaked in 2009-10 during the recession, reflecting an increase in redundancy related claims. Last year, employment tribunal fees generated £7.8m of income. Charging fees helped the MoJ to balance its books after the department’s budget was cut by 27 per cent in real terms between 2010-11 and 2016-17 as Grayling seemed to welcome Osborne’s austerity.

The most striking feature was the sharp drop in cases after 2012, coinciding with the government’s introduction of fees for using the service. Since July 2013, employees taking their case to tribunal have faced fees ranging from £390 (for claims such as breach of contract) to £1,200 (for claims such as unfair dismissal or sex discrimination). Appeals cost up to a further £1,600. The number of cases brought last year was 70 per cent lower than in 2012-13.

The public service trade union, Unison, sought judicial review of the Fees Order on the grounds that it unlawfully prevented or restricted access to justice. Unison sought to establish that the Fees Order was unlawful as there was a real risk that persons will effectively be prevented from having access to justice and that the degree of intrusion is greater than is justified by the objectives which the measure is intended to serve.

The Supreme Court decided in favour of Unison on both grounds. The court unanimously ruled that the fees contravene both EU and UK law and are “discriminatory” against women. The Court ruled that the fee schedule adopted prevents access to justice, and is therefore unlawful. Its concern was that the level and structure of the fees were effectively preventing employees enforcing the rights granted to them by Parliament. In their ruling, the court said: “A significant number of people have found the fees unaffordable.”

In addition it was held that fees can prevent access to justice not only where they are unaffordable, but also where they render it futile or irrational to bring a claim, since many ET claims do not seek any financial award or seek only modest amounts.

General secretary of Unison, Dave Prentis, said that the Ministry of Justice has been operating unlawfully for four years. He added: “The Government is not above the law, but when ministers introduced fees they were disregarding laws many centuries old, and showing little concern for employees seeking justice following illegal treatment at work.

“The Government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.”

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Prison reform


Prison reform was a key element of the Prisons and Courts Bill, abandoned in the run up to the general election. And it was not reinstated in the threadbare Queen’s Speech.

In his first public statement since taking up the post of justice secretary, David Lidington has sought to reassure that this apparent dropping of prison reform is not sinister. The Ministry of Justice (MoJ) published an open letter from him claiming that ‘essential’ changes are already under way to make prisons places of ‘safety and reform’.

“The work to make our prisons true places of reform and rehabilitation is already under way – and it will continue unabated,” Lidington writes. He details the work within local communities and with other services such as with Probation, Jobcentres, housing, health and drug services, local businesses and charities to provide innovative schemes and initiatives to prepare prisoners for a life after release and promises: “Only by building on this work to reform offenders and support ex-offenders will we stop the vicious and costly cycle of reoffending.

“This is my priority and as the new Secretary of State, I am committed to building on the essential reforms that are already under way to make prisons places of safety and reform.”

Stressing the importance of staffing he said: “My predecessor has already secured a £100 million a year investment for an extra 2,500 prison officers. The most recent figures show the number of prison officers in post has increased by 515 compared with the previous quarter and we are on track to deliver all 2,500 prison officers by December 2018.”

Lidington claimed that we are the first jurisdiction in the world to introduce testing for psychoactive substances across the estate. And more than 300 dogs have been trained to detect these substances.

On drones he said that the department is working with the police to catch and convict criminals using drones to smuggle contraband into prisons, and have also established a new team of prison and police officers to directly tackle the threat posed by drones. On mobile phones: “We are working with mobile network operators to tackle illicit use of phones. We have now fitted out every single prison across the estate with hand-held mobile phone detectors and detection poles to step up the detection of illegal phones on the landings. More than 150 mobile phones have been cut off since the introduction of new powers through the Serious Crime Act.”

He confirmed that “We are continuing to transform our prison estate to close old and dilapidated prisons and create up to 10,000 new places through a £1.3 billion investment.”

As reported in the ‘Gazette’, Peter Clarke, HM chief inspector of prisons, said the bill had enjoyed broad parliamentary support and had made real progress. Its absence from the Queen’s speech was a ’missed opportunity’, Clarke said, adding: “We will continue to report the harsh reality of what we find in our prisons – all too many of which are dangerous for prisoners and staff alike.”

And Peter Dawson, director of the Prison Reform Trust, said: “The decision puts even more pressure on the new justice secretary to find ways to stop our chronic overuse of prison so that this hardest pressed of public services can start to repair the damage his predecessors have inflicted upon it.”

The full text of the justice secretary’s letter can be found at:
https://www.gov.uk/government/speeches/prison-reform-open-letter-from-the-justice-secretary

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Lord Chief Justice attacks the Lord Chancellor


Giving evidence to the House of Lords’ Constitution Committee this week, the lord chief justice, Lord Thomas of Cwmgiedd, launched a forthright attack on the justice secretary, Liz Truss, for her failure last year to defend judges who were branded “enemies of the people.”

Referring to the article 50 Brexit court case, he told the select committee Truss was “completely and utterly wrong” to say she could not criticise the media.

Last November, the ‘Daily Mail’ ran the headline “Enemies of the people” when the high court, on which Thomas was sitting, found against the government, forcing ministers to obtain parliamentary backing before triggering Brexit.

The lord chief justice told peers: “The circuit judges were very concerned. They wrote to the lord chancellor because litigants in person were coming and saying ‘you’re an enemy of the people…I don’t think it is understood either how absolutely essential it is that we [the judges] are protected because we have to act as our oath requires us without fear or favour.”

Referring to Gina Miller, the lead claimant in the Article 50 case, he went on to say:“It is the only time in the whole of my judicial career that I have had to ask for the police to give us a measure of advice and protection in relation to the emotions that were being stirred up.”

Lord Thomas’s intervention came after Truss told the Financial Times that judges should boost their image because they would come under greater scrutiny post-Brexit. She urged judges to “speak out about the important work they do to ensure that it is widely understood”.

Due to step down in the autumn after four years in office, Lord Thomas said he had intended to wait until a lecture he was planning to give in June to make public his opinions on the matter, but felt the need to do so now because of the lord chancellor’s comments and a newspaper interview she gave.

Pulling no punches he said: “I regret to have to criticise her as severely as I have, but to my mind she was completely and absolutely wrong. And I am very disappointed. I can understand how the pressures were on in November, but she has taken a position that is constitutionally absolutely wrong. It is Truss’s duty, as lord chancellor, to defend the judges.”

Truss said she supported freedom of the press and did not feel it was her role to tell newspapers what they should put on their front pages. She told the same committee earlier this month: “I think it is dangerous for a government minister to say, ‘this is an acceptable headline and this isn’t an acceptable headline,’ because I am a huge believer in the independence of the judiciary. I am also a very strong believer in the free press.”

A Ministry of Justice spokesman said: “An independent judiciary is the cornerstone of the rule of law and it is the duty of the Lord Chancellor to defend that independence. The Lord Chancellor takes that duty very seriously. She has been very clear that she supports the independence of the judiciary but that she also believes in a free press, where newspapers are free to publish, within the law, their views.”

Image by FruitMonkeyOwn work, CC BY-SA 3.0, Link

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Reforming the Advocates’ Graduated Fee Scheme


The Ministry of Justice (MoJ) has issued a consultation paper which sets out proposals for the reform of the Advocates’ Graduated Fee Scheme (AGFS). This scheme pays advocates to defend clients in the Crown Court. The current AGFS scheme was last subject to major change in 2007.

In his introduction to the consultation, Sir Oliver Heald QC MP, Minister of State for Courts and Justice, said: “Sir Brian Leveson has produced an outstanding blueprint for the modernisation of our criminal proceedings system. His reforms are already beginning to transform the criminal justice system to reflect the new reality that we face. It is vital that we update the way that we pay criminal defence advocates to reflect this reality too. Our current payment system does not focus enough on the skilled advocacy that barristers and solicitor advocates demonstrate in the Crown Court. I want to change that.”

According to the Government, the AGFS relies too heavily on Pages of Prosecution Evidence (PPE), served by the Crown Prosecution Service, as a means of deciding how complex individual cases are, and therefore how much a defence advocate should be paid. The current scheme also relies on the number of witnesses to help determine the fee to be paid.

The justice system is changing, and new forms of evidence are becoming critical features of many criminal cases. The counting of pages, and counting of new forms of electronic evidence, converted to “pages” is held to be no longer the most effective way of assessing how much work an advocate needs to do in an individual case, and therefore how much that advocate should be paid.

The proposed scheme claims to reduce reliance on counting pages, and instead would introduce a more sophisticated system of classifying offences, based on the typical amount of work required in each case. The time spent in court, conducting the advocacy upon which the justice system relies, would also become a more important driver for the fee paid. It is designed to be cost neutral, “with no intention to reduce or increase the overall cost envelope.”

While encouraging as many members as possible to respond to the proposals, the Law Society asserts that MoJ plans to impose cuts of up to £30 million on criminal defence solicitors. The proposed cuts come less than a month after the MoJ published proposals that will see QCs’ fees rise by 10% at the expense of other criminal advocates. The MoJ will reduce payments to advocates appointed by the court to cross-examine alleged victims of abuse from private rates to legal aid rates, and will make changes to the Litigators Graduated Fee Scheme (LGFS) which will slash payments for paper-heavy Crown Court cases. Criminal solicitors simply cannot afford to absorb any further cuts.

James Parry, chair of the Law Society’s Criminal Legal Aid Committee, said that these cuts are unnecessary and ill-timed, given the long term project to reform the litigator fee scheme, which will ultimately remove reliance on the pages of evidence which are creating this problem. As the Society will be working with the MoJ on this longer term project “it is unwise to impose short-term cuts on the scheme before that project has even started.”

“The Ministry has extensive independent evidence from consultants that demonstrates that solicitors’ businesses cannot afford to absorb further cuts, and there is a substantial risk that these cuts will drive a significant number of firms into insolvency,” said Parry.

“We recognise that the MoJ has concerns about the use of paper as a proxy for determining fees in the Crown Court,” he said. “With so much evidence now being video or data evidence, we have long shared those concerns. This is why we lobbied the Legal Aid Agency to start discussions about revisions to the LGFS to reflect the reality of Crown Court cases today. It is deeply disappointing that the MoJ is making ill-considered ad hoc changes to the scheme when those discussions are ongoing and making good progress.”

Parry concluded: “This is not a rational approach. The Government needs to tackle the problem at source. It cannot keep responding to every change in the criminal justice system by slashing the fees paid to lawyers.”

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LASPO Review


At last the Ministry of Justice has announced that the government has set the ball rolling on the long-awaited review of its controversial legal aid reforms.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which came into force in April 2013, made savage cuts to the scope of legal aid. Civil legal aid became no longer available for cases involving divorce, child custody, clinical negligence, welfare, employment, immigration, housing, debt, benefit and education.

At this week’s all-party parliamentary group meeting on legal aid, the justice minister Sir Oliver Heald QC, set out the government’s timetable for the review. A post-legislative memorandum on LASPO will be sent to the justice select committee before May, ahead of a full post-implementation review of the Act to be conducted by April 2018.

Sir Oliver said the government intended to work closely with the sector’s stakeholders over the course of the full post-implementation review in order to inform its conclusions. “We intend to outline our plans in more detail about a review when we present the memorandum to parliament. What we envisage is that the memorandum and review will provide us with a robust evidence-based picture of the current legal aid landscape and how it has changed since LASPO.”

Heald said that the ministry plans to submit a post-legislative memorandum on LASPO ‘as a whole’ to the justice select committee. This process has to be done by May but he said the ministry hopes to do it before then. He added that the memorandum will cover the whole act, including part one. “It will look at how the Act has been affected by litigation, how it was implemented, and will consider the various reviews of legal aid that have taken place since LASPO, by bodies such as the National Audit Office and others,” said Sir Oliver. “This will lead to an initial assessment of the extent to which changes to legal aid met their objectives, which is the test for a post-legislative memorandum.”

He added: “We intend to outline our plans in more detail about a review when we present the memorandum to parliament. What we envisage is that the memorandum and review will provide us with a robust evidence-based picture of the current legal aid landscape and how it has changed since LASPO.” Heald said the government intends to work ‘closely and collaboratively’ with other parties. It will outline more detailed plans about the review when it presents the memorandum to parliament.

Cuts to legal aid have left many without access to justice. One of the effects of reduced legal aid is the rise in the number of litigants in person, which has caused an increase in court delays. The number of people going to court without a lawyer has been rising since access to legal aid was cut. The less well off and those with children are more heavily represented in those litigating in person than any other group. Reductions in legal advice services raise grave concerns about the creation of “advice deserts” and vulnerable people unable to get the advice they desperately need.

Research by the charity Citizens Advice has revealed that the stress, responsibility and loneliness of going to court without representation can mean ‘Litigants in person’ (LiPS) achieve worse outcomes compared with their represented counterparts.

It also showed 90% of people who had been LiPS found the experience negatively affected their health, relationships, work or finances. Figures from the MoJ in October 2016 reveal that in 80% of family court cases, at least one individual had no lawyer.

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Family courts allow abusers to torment their victims


The head of the Family Division, Sir James Munby, has called for a bar on victims of domestic violence being cross-examined by the alleged perpetrators in court. The practice is not permitted in criminal courts. He said: “Reform is required. I would welcome a bar. But the judiciary cannot provide this, because it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers.”

Liz Truss, the justice secretary, is said to share his concerns about how the family courts can enable perpetrators of domestic abuse to continue their intimidation and harassment through the court system. A senior Ministry of Justice source said: “This is a matter we are extremely concerned about and looking at as a matter of urgency.”

Comprehensive evidence obtained by the ‘Guardian’ has revealed how the family court allows men with criminal convictions for abusing their ex-partners to directly question them; is able to ignore restraining orders imposed by the criminal courts to protect the women; and allows fathers, no matter how violent or abusive, to repeatedly pursue contact with children and their mothers. The evidence also shows that the family court can ignore expert evidence that women are at risk from abusive men and fails to adequately protect vulnerable victims of domestic and sexual abuse.

Women are often cross-examined by violent ex-partners in secretive civil court hearings. Those who speak out risk being held in contempt of court for discussing what went on in their private court hearings, but said they wanted to shine a light on what was going on in the system.

The immediate problem is another of Chris Grayling’s chickens coming home to roost. To satisfy the austerity demands of George Osborne (remember him?) Grayling took the axe to his department’s budget. Legal aid is now denied in most family cases. The main exception is for a victim of domestic abuse. Cuts of more than 30% are crippling access to all sorts of justice.

The number of people going to court without a lawyer has been rising since access to legal aid was cut severely in 2013. The less well off and those with children are more heavily represented in those litigating in person than any other group.

Research by the charity Citizens Advice has revealed that the stress, responsibility and loneliness of going to court without representation can mean ‘Litigants in person’ (LiPS) achieve worse outcomes compared with their represented counterparts.

It also showed 90% of people who had been LiPS found the experience negatively affected their health, relationships, work or finances. Figures from the MoJ in October 2016 reveal that in 80% of family court cases, at least one individual had no lawyer.

The justice secretary has set up an emergency review to find the quickest way to ban perpetrators of domestic abuse from directly cross-examining their victims within the family court system. The research paper being prepared is due to be completed by the end of next week. It will examine whether primary legislation is necessary to end perpetrator cross-examination, or whether it could be stopped through the provision of more legal aid.

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Personal Injuries proposals


In a move described as ‘heavy handed, excessive, and disastrous’ the Ministry of Justice announced last week that it plans to either scrap the right to compensation or, alternatively, put a cap on the amount people can claim for minor soft-tissue injuries. Capping whiplash compensation would see the average pay-out cut from £1,850 to a maximum amount of £425.

MoJ also said it would raise the limit for cases in the small claims court for all personal injury claims from £1,000 to £5,000. Read the full story

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Imprisonment for public protection


Peter Clarke, the chief inspector of prisons, has produced a report on the 3,859 imprisonment for public protection (IPP) prisoners currently held. He said justice secretary Liz Truss needed to take decisive action to reduce the numbers of those still in prison years after the end of their tariff.

The sentence was introduced in 2005, designed for those who had committed specified ‘serious violent or sexual offences’ and who were deemed to pose a ‘significant risk of serious harm’ in the future. Under the sentence, high-risk individuals would serve a minimum term in prison (their tariff), during which time they would undertake work to reduce the risk they posed. When sufficient risk reduction had been achieved, they would be released by the Parole Board.

The sentence was abolished in 2012. Between 2005 and 2012, a total of 8,711 sentences were issued by the courts. As of September 2016, 3,859 of those prisoners sentenced to an IPP were still in custody, and 87% or 3,200 of these prisoners were beyond their tariff expiry date. Over a third, 42% or 1,398 prisoners, are five or more years over tariff.

Peter Clarke said it was “completely unjust” that offenders serving IPP terms were “languishing in jail”. He warned that these sentences were having a serious effect on prisoners’ mental health. He said “It is widely accepted that implementation of the sentence was flawed and that this has contributed to the large numbers who remain in prison with this sentence, often many years post-tariff.
“Some people with IPP sentences remain dangerous and need to be held in prison to protect the public. Others, however, present much lower levels of risks but system failures have impeded their progress.”

He added that, as the only person “who’s got the authority to get a grip on the way things happen,” the justice secretary needs to act quickly to ensure the consequences of mistakes made in the past do not continue to resonate for many years to come.

Nick Hardwick, Parole Board Chairman, said he very much welcomed the publication of the report. He said: “The Parole Board has recently published its strategic plan to take it to through the next four years to 2020, and one of the 5 over-arching aims is directly focused on the progression of IPP prisoners where it is safe to do so.”

Former lord chancellor and secretary of state for justice Michael Gove was the speaker at this year’s Longford Lecture, delivered last week. His speech highlighted the dire state of UK prisons with instances of violence and unrest in HMP. 200 prisoners rioted at HMP Bedford, and prison officers tried to stage a protest against the unprecedented levels of violence until the High Court declared their actions unlawful.

Gove waded into the subject in strong support of Clarke, saying: “I would recommend using the power of executive clemency for those 500 or so IPP prisoners who have been in jail for far longer than the tariff for their offence and have now – after multiple parole reviews – served even longer than the maximum determinate sentence for that index offence.”

A Ministry of Justice spokesman said the chief inspector’s report rightly highlighted concerns around the management of IPP prisoners. “That is why we have set up a new unit within the ministry of justice to tackle the backlog and are working with the parole board to improve the efficiency of the process.”

The full text of Peter Clarke’s report ‘Unintended consequences: finding a way forward for prisoners serving sentences of imprisonment for public protection’ can be found at

https://www.justiceinspectorates.gov.uk/hmiprisons/wpcontent/uploads/sites/4/2016/11/Unintended-consequences-Web-2016.pdf

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Civil legal aid


Legal aid will no longer be made available for cases with poor or borderline prospects of success that may have received funding, the government has said.

Last week the Legal Aid Agency (LAA) announced that there would be a new approach to making decisions on prospects of success for ‘poor’ and ‘borderline’ cases. The LAA has changed its approach to assessing merits in civil legal aid to take account of the Court of Appeal judgment in The Director of Legal Aid Casework (DLAC) and Lord Chancellor v IS. The Court of Appeal ruled last month that the agency’s exceptional case funding scheme and merits regulations were lawful.

Although the Court of Appeal ruled in the lord chancellor’s favour, several observations were made about the government’s exceptional case funding scheme. The LAA said that the MoJ was considering what steps to take following the court’s findings.

Under the current merits criteria most cases need to pass a ‘prospects of success test’ before legal aid can be made available. The LAA said:

“The merits criteria state that the prospects of success test is met in cases with ‘poor’ prospects or ‘borderline’ cases where:

  • funding is necessary to prevent a breach of a client’s rights under the European Convention on Human Rights, or any rights of a client to the provision of civil legal aid or services that are enforceable under EU law; or
  • DLAC considers it appropriate to find that the test is met having regard to any risk of such a breach.”

The change comes as a result of the Court of Appeal finding that it is lawful for the prospects of success test to have a 50% threshold, and this does not breach a client’s rights. “As a result, we are now no longer funding any applications for civil legal aid that are subject to a prospects of success test where the prospects are assessed as poor or borderline,” the LAA said.

The LAA added: “We have also reinstated delegated functions to allow providers to refuse legal aid in cases that they assess as having poor or borderline prospects. This allows Immigration providers to refuse applications for controlled legal representation in these matters without having to revert to us first.”

The ‘Gazette’ reports the Law Society as saying that the change could mean fewer people being entitled to legal aid. “We are therefore disappointed that the Ministry of Justice decided to announce this significant change so soon after the referendum, and without consultation,” a spokesperson for the Society said.

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JSC report on courts and tribunals fees


The Justice Select Committee (JSC) is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and its associated public bodies. On Monday the committee published its second report, on Courts and tribunals fees.

The JSC said: “First, although it is a legitimate position to object to any court fees being charged to litigants, that is not a position we share. Some degree of financial risk is an important discipline for those contemplating legal action, and a contribution by users of the courts to the costs of operating those courts is not objectionable in principle: the question is what is an acceptable amount to charge taking into account the need to preserve access to justice.”

The JSC’s response to that question is to call for an overhaul of the employment tribunal fees scheme and to scrap the recent increase in the divorce petition fee. A full response to the committee’s critical report is likely in September, but in the meantime the MoJ has defended its record on the imposition of fees.

An MoJ spokesman, quoted in the ‘Gazette’, said: “The cost of our courts and tribunal system to the taxpayer is unsustainably high, and it is only right that those who use the system pay more to relieve this burden. Every pound we collect from fee increases will be spent on providing a leaner and more effective system of courts and tribunals.”

The JSC focused much of its report on the need for changes to the remission system, which reduces fees for those who can show they are in financial need. The report says: “The cornerstone of efforts to mitigate the impact of courts and tribunal fees on access to justice is fee remission.

“Fee remission is only available to individuals, including those who conduct their business as sole traders. It is not available to companies, charities or other organisations. Claimants must submit separate applications for remission of each fee, and to be successful, they must first pass the disposable capital test and then the gross monthly income test in respect of each fee.”

In particular, with employment tribunal fees, the JSC called for the income threshold to qualify for fee remissions to be increased.

Law Society president Jonathan Smithers said: “The Law Society and the solicitors’ profession have raised repeated concerns, in written submissions and oral evidence, now echoed by the Justice Select Committee, that punitive courts and tribunals fee increases are denying citizens and businesses the right to justice. The government must now heed the views of experts from across and beyond the legal profession. We welcome and reiterate the JSC’s unequivocal declaration that access to justice must prevail over generating revenue when the government is setting court and tribunal fees.”

He went on to say: “’The JSC clearly recognises the Law Society’s concerns that punitive employment and immigration tribunal fees prevent people from upholding their rights. We urge the MoJ to act swiftly on the JSC’s recommendation that the fees charged in the Employment Tribunal should be substantially reduced. Court-fee increases that have now been adopted were opposed by 90 per cent of respondents to the government consultation, making a mockery of the consultation process. Today’s report vindicates the concerns of those respondents.”

He concluded: “’All civil cases, from divorce, employment and immigration cases to landlords and small businesses trying to get their property back, are affected by fee increases which are tantamount to treating justice like a commodity. Justice is increasingly out of reach for many ordinary people. This will only serve to widen the access to justice gap in our two-tier justice.”
The full text of the JSC report can be found at:

http://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/167/16702.htm

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