Many within our area of practice will have been pleased to see the announcement from the Ministry of Justice that a review of the impact of the introduction of fees for bringing employment tribunal claims is finally going to get underway. A number of commentators had been pressing for this and last month I urged the government to make good on the promise made before the last election and get on with it. Some of the more cynical – or merely sceptical – among us have suggested that the review has only now been announced because UNISON’s appeal against the High Court’s dismissal of its judicial review application is about to be heard by the Court of Appeal.

The government does have some form in this area. Just before UNISON’s first judicial review application was heard a ‘special edition’ of the tribunal statistics was published, out of cycle. This suggested that the introduction of fees had had little impact and the drop in the number of claims was part of a more generalised decline that had been going on for years. That turned out to be wide of the mark, with a dramatic drop being sustained since around August 2013.

Prior to UNISON’s second judicial review application, the then coalition government announced that it would hold the review of the introduction of fees in autumn 2014. It was suggested by some that this was designed to give the court comfort that the issue was being dealt with by the government; the subtext being that the court need not make a controversial decision against the government. The court did not do so.

Leaving politicking and court cases to one side, any pleasure taken at the announcement of the review will have been short-lived. The terms of reference are to consider how far the original objectives for the introduction of fees have been met: (i) to transfer some of the cost from the taxpayer to those who use tribunals; (ii) to encourage the use of alternative dispute resolution services; and (iii) to improve the efficiency and effectiveness of the tribunal. Whether potential claimants have been prevented or severely discouraged from bringing claims is not central to this review, if it appears at all.

Secondly, the scope of the evidence it will rely upon is limited. No professional bodies such as the ELA will be asked to provide any evidence or comments. The government is proposing to rely upon its own data for tribunal claims; the views of court and tribunal users; general trends; and consequences arising from an improved economy (whatever that means).

There is little to argue about in terms of the impact of fees on people bringing tribunal claims. Although shortly after the introduction of fees it was suggested that any decline was (i) due to a decrease in Working Time Regulations claims; and (ii) part of a long-term decline that was taking place anyway, this sort of suggestion seems to have now been dropped. The latest release on tribunal claims states: ‘The reductions seen have been driven by decreases in … employment tribunal cases caused by key policy changes: the introduction of [tribunal] fees.’

This year we celebrate the 800th anniversary of Magna Carta. We have politicians falling over themselves to tell us how important this document and the ideas behind it have been to justice, the rule of law and the development of modern democratic government in the UK and wider world. Clause 40 states, ‘To no one will we sell, to no one deny or delay right or justice.’ In that spirit it may have been better to hold a review on the more pressing and substantial issue on fees: the extent to which they restrict access to justice and whether the balance is wrong.

Alex Lock, DAC Beachcroft LLP