No, it wasn’t the report we #ukemplaw nerds have been holding our breath for. We are still waiting for the Ministry of Justice’s report of its post-implementation review of the justice-denying employment tribunal (ET) fees introduced in July 2013. But on 20 June, at the start of a quiet news week, the Justice Committee of MPs finally published the report of its own inquiry, launched last year, into the impact of the fees.
Given what was happening later in the week, plus the fact that Parliament was in recess at the time, I do find myself wondering whether at least some members of the Committee were hoping the report would pass largely unnoticed by the mainstream media. Whatever, the Committee’s conclusions and recommendations are commendably pithy. I particularly enjoyed their barbed comments on the laughably poor oral evidence of injustice minister Shailesh Vara, and his meaningless obsession with the figure of 83,000 early conciliation cases handled by Acas:
In coming to a judgement about the impact on access to justice of employment tribunal fees, we consider, on the weight of the evidence given to us, that Mr Vara’s heavy reliance on the figure of 83,000 cases dealt with at Acas early conciliation to support his contention that access to justice has not been adversely affected by employment tribunal fees was, even on the most favourable construction, superficial. Those cases cannot be simplistically assumed to represent displaced cases which were settled satisfactorily otherwise than by being taken to tribunal.
The Committee also notes what it politely calls “inconsistencies” in the hapless Vara’s account of progress with the Ministry’s internal, post-implementation review, the report of which landed on Vara’s desk as long ago as last October: “It is difficult to see how a Minister can urge his officials to progress a review which they apparently submitted to him four months or more previously.” Furthermore:
“There is a troubling contrast between the speed with which the government has brought forward successive proposals for higher fees, and its tardiness in completing an assessment of the impact of the most controversial change it has made. We find it unacceptable that the Government has not reported the results of its review one year after it began and six months after the government said it would be completed.”
Ouch. And, on the impact of the fees on access to justice, the Committee is equally clear:
“The arguments presented to us by the Government in this inquiry, limited as they are, have not swayed us from our conclusion, on the evidence, that the regime of employment tribunal fees has had a significant adverse impact on access to justice for meritorious claims.”
In a statement accompanying the report, the Committee’s chair, Bob Neill MP, added:
“The Ministry of Justice has argued that changes to employment law and the improving economic situation, as well as the pre-existing downward trend in the number of employment tribunal cases being brought, may account for part of the reduction in the number of cases. These may indeed be factors but the timing and scale of the reduction following immediately from the introduction of fees can leave no doubt that the clear majority of the decline is attributable to fees.”
In calling for the fees to be “substantially reduced” as well as for reform of the fee remission system, the Committee recognises that this “would have cost implications for the Ministry of Justice”. However, the Committee stresses – repeatedly – that “if there were to be a binary choice between income from fees and preservation of access to justice”, then “the latter must prevail as a matter of broader public policy”.
All good stuff, then, and the Committee’s members and chair, Bob Neill, deserve praise for their work. That said, I would have liked to have seen a bit more analysis by the Committee of the Government’s arguments to date, and especially the role that Acas early conciliation is now playing in the resolution of potential ET claims. As the following chart shows, about half of the single ET claims ‘lost’ to fees are now successfully resolved through early conciliation. And, of course, not all of the other half would have been successful (at a hearing or default judgment) or satisfactorily settled.
This lack of analysis in the Committee’s report was replicated in this week’s debate in the House of Commons, which focused on the Committee’s report but which, technically, was on a motion to approve the remaining £4bn of the Ministry’s £7bn budget for 2016-17 that it hasn’t yet had from the Treasury. (By convention, such ‘Estimate Day’ motions are not put to a vote, but – seemingly under pressure from backbench ‘rebels‘ such as Chuka Umunna – Labour’s front-bench eventually decided to vote against the motion).
It is probably significant that, in his contribution to the debate, justice minister Dominic Raab – who has taken over responsibility for this matter from the hapless Shailesh Vara, and is perhaps most famous for having once been the Foreign Office’s in-house expert on “the international law of outer space” – noted that “there has been virtually no mention of [Acas early conciliation] in this debate”. My guess is there will will be quite a lot about early conciliation in the Ministry’s much-delayed post-implementation review report. Indeed, the emerging evidence on early conciliation may well explain much of the delay.
As for when we might get to read that report, Raab told MPs that “the review is very close to completion, so I hope to be able to make an announcement in the near future”. Which, who knows, might well mean ‘on Wednesday, when everyone is looking the other way’.
Labour Pains 