The Counsel General was responding on behalf of the Welsh Government to a Ministry of Justice consultation on charging fees in Employment Tribunals and the Employment Appeal Tribunal.
Presently, taking a claim to an employment tribunal or appealing to the Employment Appeal Tribunal is free of charge to users and is entirely funded by the taxpayer.
In early 2011, the UK Government announced its intention to introduce fee charging into these tribunals. The Ministry of Justice’s own initial Impact Assessment indicates that under their proposals, employment tribunal claimants would tend to be worse off under these changes.
In his letter to the Justice Secretary, Ken Clarke QC MP, the Counsel General, Theodore Huckle QC said:
“True and free access to justice for all citizens, whether their claims are popular or unpopular, is an integral part of the democratic settlement in the UK. This is irrespective of, but very much supported by, the principles of the European Convention on Human Rights. Accordingly, a failure to ensure free access to justice is highly detrimental to the relationship between citizens and state. It undermines social cohesion within the UK and is contrary to “Big Society” thinking.”
The Counsel General said it was inappropriate to think of access to justice in terms of a commercial service being provided to citizens, particularly in the context of ensuring they can enforce their employment rights.
He also questioned UK Government proposals to provide full fees remission to those who have lost employment only when they are in receipt of relevant benefits. Under the plans, they would lose this right when they gain alternative employment, perhaps of equal or even lesser low pay status to the original employment.
The Counsel General said:
“This proposal is very much contrary to the UK Government’s reform of the welfare system, designed to “make work pay". The UK Government should be supporting those who are forced to tackle prejudice and discrimination in order to maintain their employment, whereas these proposals are calculated to have the opposite effect.
“The UK Government’s desire is that the Courts and tribunals should be seen as a “last resort”. Any view that only the unmeritorious claims will be discouraged by the introduction of fees would seem to me to be somewhat naïve.
"The process of approaching a legal court or tribunal is off-putting for most citizens; the thought of doing so without direct legal advisory support and representation is daunting in the extreme. To be required to do so and pay substantial fees as well in advance will undoubtedly deter many applicants with good claims who will thereby be denied access to justice. There does not appear to be any evidence upon which a contrary view would be justified.”