Oral evidence: Courts and tribunals fees and charges HC 396Tuesday 9 February 2016

Oral evidence, 9 February 2016.

Witness

Mr Shailesh Vara MP, Parliamentary Under-Secretary of State, Minister for the Courts and Legal Aid, gave evidence.

Chair

Welcome, Minister. Thank you very much for coming to join us. I am sorry that it has taken us a bit longer to get to your evidence session than we would have liked, but we had quite a lot of material to deal with, as you can imagine. I am grateful to you for coming along to present the Department’s response and evidence. To start off with, this inquiry included things like the criminal courts charge, and we issued a short report on that. Our Committee welcomes the stance that your Department took on that, and the Government’s swift response to the criticisms that had been raised about the operation of the criminal courts charge. We are grateful for the way that was dealt with so promptly and, we think, proportionately. Can you help me on this? When the Secretary of State indicated what was to happen about the criminal courts charge, when he responded to our report, he stated that there would be a wider review of court-imposed financial impositions on offenders. Could you help us on that? Has that review started yet? Can you help me as to what the terms of reference are, what the timescale is for the review to be carried out and what it may or may not be looking at?

Mr Vara

Certainly. A very good morning to you, Mr Neill, and to your Committee. It is absolutely no problem that there has been a delay. Some of my officials were considering whether that meant that the time I would be before you would be shortened, or whether it would simply be extended. We never reached a conclusion, but it is a pleasure to be here this morning, sir. Yes, the Justice Secretary has put in place a review. It is intended to try to simplify the process. At the moment, we have fines, compensation, victim surcharge, prosecution costs and the criminal courts charge. It looks as if it is a slightly complex system, and officials are looking into all the impositions with a view to seeing if there is a way forward to simplify the amount of moneys that are collected.

Chair

When do you anticipate that the terms of reference will be published and you will be able to start gathering evidence?

Mr Vara

We are working on them at the moment. It is something that we want to get right. I cannot at the moment say precisely when, but I would hope that sometime later this year we would have some sort of definitive report. Beyond that, I cannot give you a deadline.

Chair

There was an oral question to the Secretary of State on 8 December. As I say, I welcome the steps that the Secretary of State has taken, but some people might read him as having left open the possibility of bringing back some form of criminal courts charge once the review runs its course. A lot of people might have felt that the evidence was so fundamentally damning that that would not be a wise course. Is that really something worth considering, or is it not perhaps better to move on in the broader context that you have thought about?

Mr Vara

I think that is one for the review to look into, and it would be premature for me to make any such comment.

Chair

Nothing is ruled in and nothing is ruled out.

Mr Vara

The court charge has been suspended at the moment. The criminal courts charge, along with the other impositions, are all going to be reviewed as a whole, to see if we can have a simpler system. As you say, it is suspended at the moment. That was the process that we undertook with statutory instruments. I think it is best to await the outcome of the review, rather than to consider the individual points of any one imposition.

Chair

I am sure the holistic approach is right. That is why we are keen to have as much detail as we can as to when and exactly how that review is going to get under way.

Mr Vara

All I will say is that I am mindful, as is the Department, that this is something that is of interest to a lot of people, not only those in the legal profession but also more generally. We will therefore make sure that officials act as expeditiously as possible, with a view to having a report that is comprehensive and does what we would like it to do.

Dr Huq

It is good to see you in non-pensions mode this morning, Minister. Any initiative needs a robust business plan before proceeding, but cost recovery, in both the employment tribunals and the immigration and asylum chamber, has fallen far short of what was projected. Why the mismatch between the two?

Mr Vara

It is important to consider employment tribunals in a broader context. Everybody looks at the figures for the number of cases that have appeared before the tribunals and has come to the conclusion that that has to be because of the fees. That is not so. As you will be aware, a review is taking place at the moment, and I hope that it will not be very long before the outcome of that can be made known. It is important to remember that, for example, in the first 12 months of the ACAS conciliation procedure, ACAS handled some 83,000 cases. That is 83,000 cases which, alternatively, might well have ended up before the employment tribunal. Instead of people going to the employment tribunal, there is now a free service, which I hope this Committee would welcome, where people can go and try to resolve an issue in conciliation, rather than going to the employment tribunal. It is important to remember that, before the employment tribunal fees came into place, the trend of the number of cases going to tribunal had been going down. We also have to remember that the economy has been picking up, and employment is increasing. There have been changes to employment law. All those factors may well have contributed to the number of cases diminishing in the employment tribunal.

Dr Huq

I want to ask specifically about pregnancy discrimination. There was a Westminster Hall debate on that recently. Maternity Action gave evidence to us and said that there has been a fall of about 40% in the number of cases since the immediate introduction of the fees. Other figures from 2005 suggested that less than 10% of women suffering from this would present themselves in the first place anyway, for fear of repercussions. Do you think that is an initial anomaly, or is it a worrying trend? What can we do about it?

Mr Vara

We cannot rule out that some of those women are going to ACAS, rather than going to an employment tribunal. One of the things that I hope the review will be looking at is to make sure that there has not been any negative impact on people with protected characteristics. You raise a very good point, and I very much hope that it is something that will be looked into. I am minded to say that many of the people you refer to may well have ended up at ACAS as well.

Marie Rimmer

Could you clarify those 83,000 cases that have been settled by ACAS or have been to ACAS? What is the timeframe for those 83,000 cases?

Mr Vara

Shortly after the employment tribunal fees were introduced, ACAS started a conciliation process for people to try to resolve their disputes through ACAS rather than going to the employment tribunal. In the first 12 months of the procedure starting, 83 cases of employment tribunal disputes—

Marie Rimmer

Eighty-three thousand cases.

Mr Vara

Yes, 83,000 cases where there was a dispute between employer and employee went to ACAS. My point is that, were it not for the conciliation service, many of those cases would have ended up at the employment tribunal. ACAS conciliation is actually taking away cases that would otherwise have ended up in an employment tribunal. People say that it is the fees that have driven away the cases, but I would say that that may well not be the case. It is just that there is an alternative free process rather than paying fees for the employment tribunal and possibly using lawyers. Why would anyone want to pay lawyers and pay fees when they have a free system that they may be able to use?

Marie Rimmer

Have you any idea of the figure for the number of cases that were settled by ACAS or with ACAS?

Chair

It would be much better, and it is general courtesy and practice, that notes are passed, rather than having conversations, Minister. That is for the benefit of officials.

Mr Vara

Forgive me. It is part of the review. I do not at present have any figures to hand. Certainly, however, the figures are encouraging and show that people are going there. I understand—I would need to double-check—that it may be that about 80% of the people who go to the conciliation process have said that they are satisfied with the process.

Marie Rimmer

Would you let us have the figures for that?

Mr Vara

Certainly. I am more than happy to do that. I will write to you.

Chair

It is not always possible to have figures readily and immediately to hand, but if you are able to send them, we would be grateful. It would also be very courteous, and it would be appreciated. Can I bring you back to the original question, which was about cost recovery? I wish to get on to that point specifically. As I understand from HMCTS, specifically the Courts and Tribunals Service’s annual report for 2014-15, the cost recovery target for civil and family business was 100%, and the actual cost recoveries were 94% and 87% respectively. Those are their figures. Although it is not formed of the same type of specific targets, the information we have in relation to employment tribunals is that the fees were set to produce a cost recovery of around 33%. For the immigration and asylum chamber, they were set to achieve a recovery of around 25%. The respective outturns from the report’s figures are 17% as against 33%, and 9% as against 25%. In those two areas, they are falling significantly short of the targets. That indicates that they are not really effective at doing what they are supposed do, doesn’t it?

Mr Vara

You raise a good point, Mr Neill. We certainly had estimates in terms of employment tribunal fees. As part of the review, we will certainly be looking into the broader overall objective of what we sought to achieve, whether that has been achieved and whether there is anything else that can be done by way of moving forward. I am not going to dispute what you said. Likewise, with the immigration and asylum cases, there has been an under-recovery. We need to look into that to see where we went wrong.

Chair

I am grateful. I am glad it is in the review. An under-recovery of something that had some other unfortunate side-effects is not unfamiliar, as we know, in the context of charges.

Alex Chalk

On cross-subsidisation, we have had a panel of distinguished lawyers and judges who say that it is an affront to justice and that it undermines the integrity of our judicial process. We have even had Magna Carta invoked. They say it is bad news. Are they right?

Mr Vara

I think Magna Carta also mentions access to justice. What we are trying to do is make sure that there is access to justice for all our citizens. That means having a courts and tribunals system that is sustainable, affordable and fit for purpose. We need to pay for that. Therefore, I see no reasons why, if it is possible that a fee can be raised in one area that helps for the greater good of justice, we cannot use that fee to make sure that other parts of the courts and tribunals system work as well as we want them to.

Alex Chalk

What do you say to the charge that this is a public good and something that society benefits from overall, and therefore the taxpayer should pay for it?

Mr Vara

We have to recognise the economic reality of the time. We were elected to ensure that the economy was put right again—to fix the economy. We have a mandate from the country to do that. I do not think that the Courts and Tribunals Service should in any way be exempted from playing its part in ensuring that the greater picture of economic recovery is there. We incur huge costs in running the courts and tribunals system. We want a courts and tribunals system that is there for everyone who needs access to it. That is why we need the money.

Alex Chalk

It will be suggested, so it is said, that this will be billed as England and Wales using the justice system as a cash cow. Whether that is fair or not, that is the way it will be portrayed, and that could damage our international competitiveness. What do you say to those who are concerned about the way this is perceived domestically and, perhaps as importantly, overseas?

Mr Vara

It is important to recognise that the element of cross-subsidisation has been approved by Parliament. People say that it might be regarded in a certain way overseas. When you say that, you mean the court fees generally.

Alex Chalk

Yes, exactly: the UK is effectively trying to squeeze the orange, or whatever the expression is—it is trying to extract as much money as possible and is taking the wrong approach, and that damages our competitiveness, so the argument goes.

Mr Vara

We are looking at every way we can make sure that we have a sustainable courts and tribunals system. I do not see why there should be an issue where users of courts and tribunals should not be paying. It seems reasonable; going back to the criminal courts charge, the original concept was that those who are convicted should pay towards the service of the court that is there to deal with them. From a broader perspective, in terms of the international market looking at us, if you are saying that they are saying that we are trying to squeeze money from the courts, I am minded to say that they are probably not taking that view. If you are talking about a deterrent for overseas people coming here—is that where you are going?

Alex Chalk

Yes, that is part of it. People can choose all sorts of places—Singapore and elsewhere—so why would they go here if they think England is trying to take too much money out the system?

Mr Vara

You raise a very good point, but people do not come to the UK for legal services because of our costs; they come here because of the quality of our lawyers and because of the independence and the quality of our judiciary. They come here because they use UK law—English law—in their contracts. They certainly do not come here because of cost. I simply refer the Committee to the report that was published and reported on in some of the newspapers last Friday. The report spoke of a doubling of charge-out rates in some firms of solicitors in recent years. If the lawyers, despite their fees increasing, find that overseas people are still coming here, I am minded to say that court fees are certainly not going to be a deterrent either.

Chair

Might that change, perhaps? We could get to a scenario where you can litigate your commercial dispute or arbitration, say, in Singapore or Dubai, in front of an English qualified judge, perhaps a retired High Court judge, using English lawyers, more cheaply. That shifts the balance somewhat, doesn’t it?

Mr Vara

That is already happening in some places, but it is important to put things into perspective. The court fees are a tiny, tiny proportion of the overall legal costs that parties incur. I am minded to say that, if a particular individual or company were thinking of bringing their case to the UK, their first thought would not be, “What are the court fees in the UK?” They are likely to take a much bigger approach. In fact, I am minded to say they would probably not even know what the court fees are.

Chair

I wonder why it is, then, that the Governments of Singapore and Dubai are investing so much in their international courts. Are they doing it for the sake of national pride, or is it because they see a business opportunity that we may be missing?

Mr Vara

Certainly they see it as a business opportunity, but I refer the Committee to the comments that I made earlier. It is not simply money that draws people to a particular area; it is the fact that we have lawyers who are some of the best in the world at what they do. People are paying for the quality of advice that they get. Let us be absolutely clear: we have a wonderful, independent and top-quality judiciary, which people across the world have confidence in. That is why they are coming here.

Chair

Mr Costa, are you going to come in on the competitiveness point? We will then move on.

Alberto Costa

We have already covered some of these questions, but I have one question, Minister. The Ministry of Justice cited the British Institute of International and Comparative Law report, in stating that fees were not a determining factor in whether to litigate in England and Wales. Did the same report not suggest that increasing fees would be likely to have an adverse impact on litigants’ decisions to litigate in England and Wales?

Mr Vara

I think the report said it may have an impact, rather than it would. When I read the report; that was my understanding. I got the impression that a lot of the people who had been questioned were simply hedging their bets by saying, “Yes, of course it may have an effect.” I looked at some of the responses, and they did not seem to be that definitive.

Alberto Costa

Notwithstanding that, given that it may have an impact, do you not think that the Ministry ought to measure the effect of the fee increases on international competitiveness?

Mr Vara

We are certainly aware of what the international market charges in terms of court fees.

Alberto Costa

That is not the question. I asked whether you would measure the impact of the fee increase on international competitiveness.

Mr Vara

I come back to a point I made earlier. We are talking about a tiny, tiny proportion of the overall legal costs.

Alberto Costa

Sorry, Minister, but are you saying that you will measure or you won’t measure the potential impact?

Mr Vara

When we introduced the fees, we looked at the BIICL report that you have just referred to. It did an analysis of what it thought would be the impact of the court fees.

Alberto Costa

Do you not think that the wise thing would be to give an assurance to the Committee that you will think about this, and you might perhaps write to us with a strategy for measuring the impact on international competitiveness?

Mr Vara

Given that we have already measured it recently in the report that you referred to, I am not in the business of duplicating work that has already been done very recently. I would simply say that whenever fees are introduced, we look at a broader overall picture. I come back to the earlier point that court fees are a tiny, tiny proportion—

Alberto Costa

We have heard you say that.

Mr Vara

But it is important to put it in context. To start doing whole reviews on a specific issue without considering the bigger picture would not do justice to the subject. We continue to keep an eye on matters as they progress, but given that, as I said, the report was recently made public and that it looked into court fees, I do not see that we should be commissioning another report immediately.

Chair

We will move on, with Ms Rimmer and then Mr Hanson, to money costs.

Marie Rimmer

The Government recently announced that they would not be increasing the cap on money claims from £10,000, but they may revisit it in the future. What were the main reasons behind that decision?

Mr Vara

We took the view that, for the moment, we want to continue to see the impact of the existing rules. There is the cap of £10,000 at present. That has been in place for some 10 months, and we would like to see it over the slightly longer term—the medium to longer term—to see the impact of that before we institute, if it is felt that we want to, a higher sum. Right now, we want to reflect on what the position is.

Marie Rimmer

Sir James Munby told us that it would require two years, or more likely three years, to properly measure the effects of the cost of the fee increases from their introduction. Do you agree with that? Could it take two or three years?

Mr Vara

I am not going to commit to what is a suitable period. We need to look at the evidence that is coming in at the moment. It certainly needs to be in steady state. It has been there for 10 months at present, and that is not the right time—it has to be longer. Whether it is two years or three years I do not know, but it certainly needs to be longer than it is at the moment.

Mr Hanson

We have looked at the impact of fee increases, and we know that you have done some impact assessments and some consultations on the likely impact. Could you remind the Committee what they were?

Mr Vara

The impact assessment that we had initially took the view that there would not be a huge impact on the number of cases. Experience has proved otherwise. I will say that 90% of the cases are unaffected, because they are for a sum less than £10,000. They are unaffected. As far as the balance of cases is concerned—the 10% or so—we found that in the period immediately before the cap came into being, there was a surge in the number of cases that were brought in the courts. Not surprisingly, after the introduction of the fee, there was a significant dip in the number of cases appearing. That dip has subsequently risen, but I accept that it is not back to the level it was before.

Mr Hanson

Could you outline to us what consultation you took on the likely effect of fee increases prior to the fee increases coming forward? Who did you consult?

Mr Vara

Five reviews were carried out. If you are referring to the Ipsos MORI review that the judiciary were critical of—

Mr Hanson

They called it “lamentable”, I think. The Master of the Rolls called your consultation “lamentable”.

Mr Vara

It is not a criticism that I agree with. I have huge respect for our judiciary, but on this issue the criticism was of one specific piece of research, as opposed to the other four, which he did not refer to. The criticism that he directed referred to a particular piece of research carried out by Ipsos MORI, a highly reputable organisation, I hope the Committee will agree. They carried out the research in the normal way such research is carried out. I think that the conclusions of that research were that, among both the individuals and the SMEs who were interviewed, while some said that they would need to reflect on whether to go ahead because of the court fee, many of them nevertheless felt that they would go ahead and do so.

Mr Hanson

How many discussions or interviews did Ipsos MORI undertake? Are you aware of that?

Mr Vara

I believe there were 31 or 37. I can confirm that in writing later, but there were—

Mr Hanson

I suppose the point is that the Master of the Rolls said—

Mr Vara

There were 31. Thirty-one civil claimants were interviewed, of which nine were SMEs.

Mr Hanson

The Master of the Rolls said that the research base was “lamentable”. The Bar Council and the Law Society were before us this morning, and they backed that up. Nobody has come here today and told the Committee that the research was adequate in any circumstance. I suppose the question we have to grapple with is whether the evidence on which you suggest you are basing the decision for introducing the charges is adequate. Can you defend that to the Committee?

Mr Vara

Yes, I can. I am sorry if that defence has not come across as robustly as I would have liked. I mentioned that the specific criticism made by Lord Dyson was with reference to one piece of research, but he has made no comment, as far as I am aware, on the other four pieces of research. We carried out more than that one single piece of research. We looked at it and we considered it, and we then went ahead with what we thought were the correct decisions.

Mr Hanson

One of the defences that the Ministry and you put forward in written evidence is that the access to justice issues will be dealt with by conditional fee arrangements or after-the-event insurance. Can you help the Committee in citing evidence you have that that proposition would be feasible?

Mr Vara

The conditional fee agreement is a concept that exists. People are using it. Many people who otherwise would not be able to progress their cases are able to do so because of the CFA arrangement or after-the-event insurance. If we are looking at people being able to progress cases that they would otherwise not be able to do because they do not have money, the CFA system actually works to help them.

Mr Hanson

The Committee would be interested in what current physical evidence the Ministry of Justice has examined that conditional fee arrangements and after-the-event insurance would be of assistance to those who would otherwise be denied access to justice.

Mr Vara

I do not have to hand the evidence that you seek, but I am happy to write to the Committee with any further information that I can subsequently obtain. I would simply say that it is a fact that people who would not otherwise be able to progress their cases are able to do so because of the availability of conditional fee arrangements.

Mr Hanson

The Committee would like to have that. Among the papers we have, there are research papers from 2013 and there is a research paper from 2007, but that is long ago—I was the Minister in 2007. It is not exactly current, up-to-date research in the Ministry of Justice. The question for you, Minister, is that we would like to know on what basis conditional fee arrangements and after-the-event insurance have been proposed, based on research, and whether or not there is anything more than the relatively “lamentable” research on the impact of court fees—the Ipsos MORI research. Those are the concerns that have been put to us. For us to accept your point of view, we essentially have to have an argument put slightly more strongly than it has been in written form by the Ministry of Justice to date.

Mr Vara

I am happy to supply the Committee with any further information that I can, but I simply say to the Committee that these are difficult decisions. They are not decisions that are going to be welcomed with open arms, but we have to recognise the economic reality of the climate that we live in. It is necessary to raise fees, tough though those decisions are.

Chair

Lord Dyson’s evidence to us in terms of the evidence base, which was what was being criticised by the senior judiciary, was that there were 18 telephone calls the first time round, of which 12 were court users. The second time there were 31, as you said, Minister, and he said that “only a very small number were people who had experience of or were going to bring larger claims.” Perhaps you will be able to set out in your evidence, when you supplement it, exactly the sort of people those telephone calls went to. He went on to say, and these are his words, “I am afraid that we warned that the research was hopeless. The impression I have is that there was a need to rush this thing through, because there was a great big gap in the Department’s finances that had to be plugged. I got the sense that it was almost a desperate way of carrying on.” That is the Master of the Rolls saying that, Minister.

Mr Vara

I simply repeat to the Committee that the Master of the Rolls is making reference to one piece of research, whereas we actually conducted additional research, and I am not aware that he has commented on the additional research.

Chair

You have made the point, and I understand your point that there were financial constraints and you had to deal with the deficit. A lot of us in this room would agree and sympathise with you about that, but there may be ways in which you deal with it that are more efficient than others. What he is being very critical of is the way in which this bit was dealt with, that it was done in a rush, with very little proper evidence to back it up. Is that something worth reflecting on?

Mr Vara

I hear what the Master of the Rolls said, but I do not accept his criticism. I hope that the Committee will understand or appreciate the very difficult economic circumstances that were prevailing. We had to take decisions with as much advice and research as we were able to undertake at the time. We acted in good faith. Sadly, the timetable was not one that was to the liking of the Master of the Rolls. We acted in good faith and we took decisions. We did more research than the Master of the Rolls refers to.

Chair

I do not doubt the good faith, but sometimes the shrewd advocate or lawyer will tell their client, “Well, we acted in good faith, but the judge has told us our evidence is pretty lamentable. Maybe we should go away and reconsider our position.” Isn’t that something to do?

Mr Vara

Mr Neill, with respect, I suspect that, on appeal, they might say that actually the judge referred only to one piece of evidence when we had four others that he completely ignored.

Alex Chalk

Isn’t there a perfectly defensible position, which is to say, “We were faced with a crisis. We had to act fast. We had to plug these finances and, frankly, it was not a Rolls-Royce consultation, but a clapped-out Morris Minor one. That is simply what we had to do”? Why can’t one be straightforward about that, and say, “It was the best we could do in the circumstances. Over time, we will review it, we will do better consultation and we will try and get it right. Those were difficult, emergency times, and those were emergency measures. It was not the best, but it was adequate. It was all we could do”?

Mr Vara

Yes, we had to act quickly and we had to take tough decisions. We took those decisions with the evidence and research that was available when we had to take them.

Alex Chalk

You are not saying that this was a Rolls-Royce consultation, are you?

Mr Vara

Decisions taken by Ministers are always taken with the utmost integrity and with good faith. They act with as much information as is then available. Hindsight is wonderful. Even with decisions that are taken in a leisurely manner, and with the comfort of having done as much research as anyone out there could ever complain about, with hindsight there is always going to be something that comes up to show that actually we missed that little bit. We had to act quickly, we did so, and we did the best that we could under the circumstances.

Chair

You have kindly indicated that your officials will come back to us with some more information about that matter, on the evidence base. In doing so, it might be helpful if they have in front of them the written submission from the JEB—the Judicial Executive Board—which contests the whole of the evidence base, not just one particular point. I am sure that they will want to deal with that broader accusation. Thank you for agreeing to do that.

Mr Vara

I am grateful for that point, Mr Neill. We will certainly look into it.

Chair

For completeness, that is only fair. We now move on to the question of employment tribunal fees.

Dr Huq

The impact assessment predicted that there would be very little change. Has that been borne out?

Mr Vara

I refer to the comments I made earlier, in that there has been change. There has been a significant change in the usage of the employment tribunals, for the reasons that I mentioned earlier. Some 83,000 cases went to the ACAS early conciliation process in its first 12 months. The economy has picked up, and there are more jobs out there. Those are all factors that need to be considered, rather than just fees.

Dr Huq

What do you make of the argument that access to justice could be improved with sequential fees, rather than enhanced up-front fees for money claims?

Mr Vara

Are we talking about money claims now, or employment tribunals?

Chair

Employment tribunals.

Dr Huq

Within employment tribunals—if it was substantial.

Mr Vara

We took the view that it was best to have a fee, and that is the process we have pursued. There are all sorts of ways of determining those fees, depending on the sums involved, but we felt that the system we used was the appropriate one.

Marie Rimmer

The post-implementation review of employment tribunal fees was expected to report by the end of last year. Why has it not been published?

Mr Vara

Ms Rimmer, you are absolutely right; we had hoped to make public the findings before the end of last year. It has not happened. I can assure the Committee that the review is well under way. There has been a lot of evidence that we have had to consider, and we want to make sure that we get it right. I am particularly mindful that a lot of attention has been focused on the issue. We are therefore keen to ensure that the final announcement is done comprehensively. I can assure the Committee that it is well under way, and I hope that it will not be very long before we make that announcement.

Marie Rimmer

So the cynics are wrong: you are not sitting on it; you are saying that it is not complete.

Mr Vara

It is correct that we are not sitting on it.

Marie Rimmer

When will the review be published? What timescale do you have? It is going on now, isn’t it, although it is not completed?

Mr Vara

I hope it will be sooner rather than later. It is well under way. I do not want to commit myself to a specific date and find that we overshoot it because I have been over-optimistic. I can, however, assure the Committee that this is something that I am personally following through, and I am urging officials to make sure that we have some sort of announcement as soon as we possibly can.

Marie Rimmer

Will you provide the Committee with the details of that review? We would like to use its results to inform our report on this subject. It is very important. There is a lot of concern about employment tribunals.

Mr Vara

I accept that there is a lot of concern, and I have taken a lot of questions on the subject during Ministry of Justice oral questions in the House, but I have to say that I cannot recall too many occasions when anybody asked a question in the broader context in which the subject should be considered. I very much hope that, when the outcome of the review is made public, people will take on board that it is a much bigger issue than simply saying that court fees have been introduced, there has therefore been a straight reduction and it must all be down to the court fees. It is not.

Marie Rimmer

You accept that it is very important—something significant.

Mr Vara

Completely. I accept that it is very important. As I say, I have asked the officials to work at pace, and I will reinforce that point. In fact, some of them are with me today, and they will have heard loud and clear what the Committee is saying.

Marie Rimmer

Right. You have no date for it as yet, but you will inform the Committee. Our report will need to consider the impacts of your review. Thank you.

Chair

I am grateful that Ministers and officials are working at pace. We have seen some documentation—the minutes of the employment tribunals national user group on 7 October 2015—which said that the review was with the relevant Minister. At that stage, it was hoped that the position would be known by the end of the year. That has clearly not happened, has it?

Mr Vara

It has not happened. As I say, the review is well under way. There is not much more I can say, other than that I hear loud and clear what the Committee is saying.

Chair

I understand.

Mr Vara

I hope it is sooner, rather than later. In fact, it will be sooner, rather than later. I just do not want to commit myself to a date.

Chair

I get your sense.

Dr Huq

A suggestion has been made to us that the types of cases that would be deterred by these employment tribunal fees are the kind of high merit but low value ones. Rather than deterring vexatious claims, there are actually claims of merit that are being deterred. What would you make of that claim?

Mr Vara

I would like to think that some of those are part of the 83,000 figure that I quoted. I would like to think that, if that is the case, the Committee would welcome the fact that people are not incurring legal fees or court fees, but are instead using a service, the early conciliation process by ACAS, that is free.

Chair

We heard a bit of evidence about Scotland’s procedures. Perhaps Mr Arkless can pursue that.

Richard Arkless

You keep repeating this figure of 83,000 cases at ACAS, Minister. While, of course, some kind of ancillary mediation service that is free is desirable, I would like to put that in context and compare it with the number of cases that have perhaps dropped off since the tribunal fees increased. That 83,000 figure is in a vacuum if we do not consider it alongside the drop-off of cases since employment tribunal fees were introduced. Could you put it into some kind of context and give us an indication of how many cases have dropped off and, therefore, how far that 83,000 figure plugs that gap? Surely if you keep repeating the 83,000 figure, it has to be done in context.

Mr Vara

What I am trying to say is that people are regularly saying that the number of cases has gone down—they keep repeating that number, that it has gone down by X—and I am asking them, in like manner, to consider things in context. I am simply trying to add to the context. We have repeatedly heard the number of court cases by which the figure has gone down, and I am simply adding to the context by putting in the figure of 83,000. It was not that alone. I also said that the economy has picked up. It was the case, before the court fees came into place; that the trend in the number of cases going to the employment tribunal had been going down. Employment law has changed, which means that the circumstances for cases going there have changed, too. Mr Arkless, you are absolutely right to say that it is a matter of context, and that is precisely what I am trying to do—to say that there are a number of factors involved, and it is important that we consider them all in context.

Richard Arkless

I am trying to put your 83,000 figure into context, which is precisely why I am asking this question. If you cannot tell us what context it is in, can you agree to write to the Committee and give us an indication of how the numbers have dropped off and how that 83,000 fits within the overall context?

Mr Vara

You will be aware that we have a review, and one of the things that the review will be doing is to put everything into context. It would probably be better for the Committee to wait for the review, rather than me writing a letter.

Richard Arkless

Is 83,000 most of them?

Mr Vara

There are a number of factors. The 83,000 is one of those factors.

Richard Arkless

Yes, but is it most of the cases?

Mr Vara

I do not know but, as I say, it needs to be put into context.

Chair

Out of interest, I want to move on to a couple of other areas, one of which is the immigration and asylum tribunal. We have talked about the recovery rate. It was set at 25% but, as it was, it came in at about 9%. Upon reflection, is it likely that the sort of people who generally make applications for immigration or asylum would be able to meet the level of fees that you would require to achieve a 25% cost recovery? When you have your review of the position, is that something where you are perhaps prepared to take the Keynesian approach and change your stance in the light of changed evidence?

Mr Vara

We generally have the remission scheme across the board, but that does not apply so much for immigration and asylum, because the circumstances are of course different. We have an exemption—the Lord Chancellor has an exemption—when there are certain categories, for example, people facing deportation, and the Lord Chancellor can exempt fees. The remission process applies when they meet other financial criteria—for example, if they qualify for legal aid. Then they qualify for remission as well. Certainly we have not met our target, as you rightly point out, Mr Neill. That is something we need to reflect on. As I say, it is important that the courts and tribunals system pays its way.

Chair

I understand that. With the best will in the world—I think that nobody doubts the integrity of the system—you have to take a figure at a certain point in time, although the credibility of that depends on keeping things up to date on the evidence base.

Mr Vara

Certainly. We continually review matters.

Chair

In terms of the general approach, you have the exemption system. Do you have any idea as to whether some broader extension is being considered of what used to be the remission system, which is now called help with fees, I think, and whether that would be more applicable to some elements of the immigration and asylum system? We have heard some evidence from people suggesting that.

Mr Vara

Suggesting that it ought to be—

Chair

Suggesting that you should extend the general approach across HMCTS to this system. That is not an approach that the Government have been minded to take, as I understand it.

Mr Vara

As you will be aware, Mr Neill, there are always pressures from many groups to extend the envelope ever wider, but we have a tough job, and decisions are difficult.

Chair

Purely on a factual basis, you are very helpfully coming back with some information for us. Perhaps we could ask your officials to try, if they can, to give us an idea of the number of litigants in person who apply for, and receive, fee remission in that chamber. It is a limited number, I imagine, but it would be helpful to have the full context for that. We have heard evidence about it.

Mr Vara

To the extent that we have those figures, I will certainly try.

Chair

Understood. Are there any other questions from colleagues to the Minister? Minister, thank you very much. I hope we have not shortened the time we have given you for your explanations. I am grateful for your patience and your courtesy. Thank you for your evidence. We will confirm the various issues it was proposed to follow up, which you have kindly undertaken to do.

Mr Vara

Mr Neill, thank you very much. I thank the Committee. I will certainly follow up on matters that are outstanding.

Chair

We are most grateful to you. Oral evidence: Courts and tribunals fees and charges, HC 396 31