No one would actually want to spend time reading the Ministry of Justice’s recent response to a consultation on raising court fees – particularly if you are living out of the affected jurisdiction. Still less would you recommend anyone to peruse the accompanying four impact assessments and the Welsh translation. You get the gist if you guessed correctly that the government had considered all responses (including the majority in opposition to its proposals) and was going ahead with its proposed rise in court fees – roughly 8 per cent to compensate for inflation. No surprise there.
Argue as you might that court usage might drop if fees went up (for the purposes of financial estimates, the Ministry assumed a fall off of around 20 per cent); or that court service had been more than a little ropey as a response to Covid, court closures and teething problems with digitalisation; or even that now was not the time for such a massive rise, the Ministry is undeterred. It is sailing ahead with its initial proposals without amendment.But don’t think that the Ministry was not cognisant of these objections. Indeed, ‘The Government appreciates that some users might sometimes be frustrated by the service they receive.’
The fee increases are designed to raise £13m ($18m) in the current financial year and £25m ($35m) annually thereafter. This will be handy because, as the paper points out, fees raise only £724m of the £2bn required to run the courts. But behold the perfidy of the drafter. What court system in the world recovers the cost of running the criminal courts? A truly economic approach might be to invite accused persons to pay an appropriate fee to be excused court proceedings. Then we could really start sweating the assets and getting net cost down.
The issues around court fees will run and run – along the lines that they have periodically done since Lord Mackay, Mrs Thatcher’s Lord Chancellor, offered the aspirant policy that court fees in civil cases should ideally meet the cost of civil court proceedings. In fact, they never have done this because, particularly in a common law system, courts have a public role in determining the law in civil cases – something grudgingly and tacitly admitted in the failure of the policy.
But this time, there is a new element. The court digitalisation programme was sold as having benefits not only for the Justice Department in terms of savings in staff and cost but also for court users in terms of increased access to justice. The Ministry has been more than a little slippery on exactly what these might be. Under pressure from the Public Accounts Committee to be more forthcoming, it replied only ‘it expects to produce an interim report [on access to justice objectives] in 2021-22, with a final evaluation report in 2024-25.’ It then added with telling honesty or derisive commentary ‘The extent to which learning from this evaluation will be able to influence the implementation of the reform portfolio is unclear.’ That is pretty close to a bureaucratic version of ‘Up Yours’.
Post-facto determination of goals just won’t wash. You wouldn’t accept it in science. We should not accept it in policy. Court users have had to accept court closures implemented prior any benefits from them. They have faced massive disruption to services (admittedly made worse by the unpredictable effects of Covid). On them has also fallen most of the transitional disadvantages as the systems have been improved (as admittedly they have been) to overcome initial teething problems.
For us in England and Wales, it is too late. We can bleat about these court fees as much as we like and, as the Ministry’s response makes clear, it will be to no effect. Frankly, you might wonder why anyone with a serious job bothered to give this alleged consultation any time. Most didn’t, of course. But there are lessons for other jurisdictions who have been less eager than England and Wales (and they include both Scotland and Northern Ireland which have been considerably less gung ho) to implement court modernisation programmes.
First, just don’t start closing your courts and selling them off before implementing the benefits of digitalisation. It might look like a good wheeze to ministers but resist.
Second, do not forget what we know from just about every management study. Specify the goals of change with precision before you implement reform. As we all know, what counts is only what you can count. Set precise key indicators of performance. These should include goals for litigants in person – now a significant element in the mix of litigants in all courts: the expected increase in numbers (or decrease if that is the objective); the dividend in terms of reduced costs for them; the precise measurable improvements for them not you – including raised satisfaction ratings. There should also be measurable improvements to equality of access. Marking your own homework like the Ministry of Justice in the current instance is not really acceptable: ‘8.1. From our analysis, we believe that the proposed increase in court fees will not lead to direct discrimination. These fees will apply to every court user and will not discriminate against individuals because of their protected characteristics. 8.2. However, evidence suggests that there is likely to be over-representation of people with certain protected characteristics amongst court users compared to the general population. 8.3. For both civil and high courts and private family law, the main affected characteristics are gender, age and race.’
Third, for Heaven’s sake, implement court digitalisation progressively and not in one multi-blast big bang. The model for all this was British Columbia’s Civil Resolution Tribunal which has much more successfully done just that. Implementation in England and Wales was in significant trouble before Covid hit. Its impact has rather helpfully obscured the full extent of the problems caused by digitalisation and accompanying reduction in court space and time.
Finally and crucially, courts exist not only for government but for their users. The S in HMTCS stands for Service. It is too late for us. Save yourselves while you can.