There is some irony that in the year that we saw numerous celebrations to mark the 800th anniversary of the sealing of Magna Carta, changes to the justice system risk taking us back towards the Middle Ages. Increased court fees, the introduction of a criminal courts charge and the proposed closure of courts risk undermining our position as the fairest jurisdiction in the world.
The government faces an economic challenge, but it needs to assess the impact that changes to the justice system could have on other areas of public spending and the damage to the UK’s reputation as a jurisdiction of choice. We have to provide fair and equal access to justice for our own citizens to hold on to our badge as the fairest place in the world to serve justice. This is what underpins the £3.1 billion export surplus generated by legal services in England and Wales.
Last year, the impact of the first civil legal aid cuts became stark with statistics showing dramatic increases in people representing themselves in court. This is a false economy – without legal representation, cases go to court that would otherwise have been resolved earlier on and the courts get blocked because cases take longer when legal advice is not on hand to steer the parties through what can be a complex and daunting process during an already stressful or emotional time.
Unfortunately, we are no strangers to the effect that increases in court fees can have. Those wishing to pursue employment tribunals were the guinea pigs for fee increases. In April to June this year, the number of claims fell by 67 per cent compared with the same period in 2013, just before the fees were introduced. That means many hard-working people have not had the opportunity to have their case heard.
Civil court fees, first increased by the government in March this year despite serious concerns from the judiciary, Law Society and Bar Council , amounted to a 600 per cent rise for some claims. A further increase was proposed fewer than six months later, taking the increase to more than 1,000 per cent in some cases. The Law Society canvassed its members to find out how their clients would be affected. Solicitors told us that people would be put off going to court when they have genuine claims, while those out of work due to injury caused by negligence would not risk losing what little money they had left on court fees, even if they had a strong claim.
Our members also told us that small businesses – the backbone that the country’s economic recovery depends on – would suffer as large companies would be given an incentive to deny liability, knowing that the injured parties would not be in a position to fund expensive court fees of up to £20,000 to recover £200,000. Fewer large companies and insurers would settle out of court even if they were clearly liable. Small businesses employed more than 14 million people in 2013 and, according to the European Commission, provided €473 billion or 49.8 per cent of the gross added value of the UK economy. As well as making a disproportionate contribution to job creation they play a key role in growth by driving competition and stimulating innovation.
It is right that individuals and businesses pay a contribution to the courts system, but these punitive court fee increases are tantamount to treating justice like a commodity, putting justice out of reach for many ordinary people. Landlords will struggle to recover their properties, couples will face higher fees when going through the stressful process of a divorce and small businesses could buckle under the burden of unpaid debt from larger customers.
The story in the criminal courts is no better.
The criminal courts charge has been beleaguered since the off. As I write, rumours abound that the government is minded to throw the towel in and scrap the ill-conceived policy. They have just abandoned a multi-million pound tendering exercise for a fine recovery agency to collect the charges. The ill-fated procurement exercise itself wasted £8.7 million of taxpayers’ money.
Aside from the futility of charging defendants – often the poorest and most vulnerable in society – far beyond their means, the policy has had a chilling effect on justice. We have heard stories of defendants changing their plea to guilty, because they fear they will wrongly be found guilty and so attract a higher charge than if they were to defend their innocence, sometimes in excess of £1,000. More than 50 magistrates have resigned in protest at the charge. One has been suspended for paying a defendant’s charge when he could see that the destitute man had no means to pay and would be trapped in the justice system. Another resigned during an interview on BBC Radio 4’s ‘Law in Action’ at the beginning of November.
The Justice Select Committee is conducting an inquiry into both the civil court fee increases and criminal courts charge. The Law Society submitted evidence and we hope that the government will recognise and address the wider impact of these policies we detail in our submission.
In a further blow for equal access to justice, 91 courts are up for closure across England and Wales, which would mean expensive train or bus tickets and longer journey times for many of the defendants, witnesses and professionals involved in court cases. The government has consulted on the closure of one-quarter of the courts estate, on top of the 93 magistrates’ and 49 county courts announced for closure in 2010. Following extensive feedback from solicitors, we oppose 59 of the closures. We do not take issue with the premise – that some outdated courts without the necessary technology or access should close – but the government’s consultation is flawed and the Ministry of Justice refused to answer a freedom of information request on the criteria it used to determine which courts should close. The consultation documents were full of inaccuracies, misrepresenting the amount of time that courts are being used, incorrectly reporting the number and state of court rooms and under-estimating travel times to alternative courts. The government said that it wanted 95 per cent of people to be able to reach a court by car. The reality is that many court users, particularly those on lower incomes, rely on public transport to get to court. Witnesses and legal professionals also need to travel to court, often by public transport.
No matter who you are, no matter where you live, everyone in England and Wales must be able to access legal advice and the justice system. That means people need to be able to afford to have their case heard in the civil courts, should not be minded to change their plea for fear of a higher courts charge in the criminal courts and need to be able to get to a court within a reasonable time and at a reasonable cost by public transport. If these fundamental principles are not followed, we risk wasting years of progress and damaging the reputation of England and Wales as the fairest justice system in the world.
Jonathan Smithers, Law Society President