Working Theory

by Michael Reed


I do employment law for the Free Representation Unit.


michael at


Scramble, scramble, scramble! Consultation incoming!

19 April 2013

The latest government that I’ll be responding to is the MoJ’s Fee remissions for the courts and tribunals.1

It launched yesterday, on the 18th April 2013, and finishes on 16th May. The total consultation length is four weeks.

This is ridiculous.

Fee remissions is an important part of access to justice. Everyone agrees – or says they agree – that people who can’t afford to pay a court fee shouldn’t be cut off from the justice system.

The proposed system is expected to cut the percentage of litigants entitled to a full fee remission from 32% to 24%.2 Some of those people still be entitled to a partial remission (2% are currently entitled to partial fee remission, this will rise to 5%). That’s still a reduction of 5% in people who are eligible for some sort of remission.

It’s also complicated. The current system has three different sorts of remission. Remission One is based on passporting benefits. Remission Two is based on gross annual income. Remission Three is based on monthly income & expenditure. The majority of remissions, 70%, are currently dealt with under Remission One.

This is to be replaced by single remission system, which tests both capital and income (but which makes certain assumptions about income if you’re on certain benefits). All of this applies across the civil justice system and most of the tribunals – which means it involves myriad different fees and many permutations in the demography of the people paying the fees.

How does the government expect good responses, on a complicated and important proposal, to be produced within four weeks?

Large organisations take time to spin up – you need to pull together a group to response, meet, discuss, agree and arrange for the response to be signed off. Small organisations have limited resources and tend to have other demands on their time. And this leaves aside the need to actually think about the proposal carefully and intelligently.

Of course, everyone will do their best, and I’m sure many useful responses will be produced. But it’s just not possible to do the same quality of work in 4 weeks that you can do in 12.

Either the government think this isn’t a problem. Which is flattering (they must think we’re incredibly clever), but delusional enough to be worrying. The last people who should be tampering with part of the justice system are those who think it’s simple or unimportant.

Or they think it is a problem, which is more rational but equally worrying, since it suggests they don’t care about getting good responses. Again, not a comforting attitude in people developing important government policy around access to justice.

Proper consultation is important. Partly because sometimes someone can talk the government out of a bad idea. This is rare, because by the time you go to consultation, very often the direction of policy has been pretty much decided. But when it happens it’s to everyone’s benefit.

Far more important, in practice, however, is that consultation improves policy ideas before they’re implemented. Where consultation is most often useful is in the detail. People outside government and with particular expertise or experience can spot problems. They can suggest changes that make a good policy better, or a bad policy less harmful. They can help with the practicalities. They can help prevent blunders.

The government gets a great deal of free assistance in this way. Individuals and organisations give up their time, because they think its a valuable way of contributing.

If they come to believe that responding to consultations is no longer useful, the government, and everyone else, will be much worse off.

Even if this doesn’t happen, if everything is always done in a rush, the help government gets will be significantly less useful.

Postscript: I feel I should say that I’ve always found the civil service and lawyers in the MoJ (and other government departments) both highly competent and well intentioned. We’ve often disagreed, but I’ve always felt I was having a meaningful conversation.

I suspect that move to short consultations is driven by ministers, rather than civil servants. But, unfortunately, the civil servants I know are far too professional to confirm that.

  1. I’ll be co-chairing the Employment Lawyers Association’s response with Paul Statham But these are my views, not ELA’s. 

  2. Impact Assessment, p12 ¶50. 

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