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Increased civil court case fees 'could be illegal' Increased civil court case fees 'could be illegal'
(about 3 hours later)
Leading lawyers have said Scottish government proposals to increase fees for civil court cases could be illegal.Leading lawyers have said Scottish government proposals to increase fees for civil court cases could be illegal.
The Faculty of Advocates opposes the plan to increase fees over the next three years.The Faculty of Advocates opposes the plan to increase fees over the next three years.
The body has been opposed to the fees since their introduction and claimed some people would be prevented from having access to justice.The body has been opposed to the fees since their introduction and claimed some people would be prevented from having access to justice.
The government wants to ensure users pay for the system, rather than the cost being borne by taxpayers.The government wants to ensure users pay for the system, rather than the cost being borne by taxpayers.
The faculty drew attention to a recent ruling by the UK Supreme Court which said fees charged for access to employment tribunals was against the law.The faculty drew attention to a recent ruling by the UK Supreme Court which said fees charged for access to employment tribunals was against the law.
An increase of 2.3% is planned for April, followed by further 2% rises in April 2019 and 2020, which the government claimed are needed to ensure the fees cover the cost of the civil justice system.An increase of 2.3% is planned for April, followed by further 2% rises in April 2019 and 2020, which the government claimed are needed to ensure the fees cover the cost of the civil justice system.
In its consultation on the plans, the government argued that court users should meet or contribute to the cost to the public, if they can afford to do so, to reduce the "burden" on the taxpayer.In its consultation on the plans, the government argued that court users should meet or contribute to the cost to the public, if they can afford to do so, to reduce the "burden" on the taxpayer.
The Faculty of Advocates claimed that as a matter of principle, the civil justice system should be funded by the state, not litigants.The Faculty of Advocates claimed that as a matter of principle, the civil justice system should be funded by the state, not litigants.
In its consultation response, the faculty said: "The whole of society benefits from the maintenance of the court system and there is no reason why only those who use the court system should pay for it.In its consultation response, the faculty said: "The whole of society benefits from the maintenance of the court system and there is no reason why only those who use the court system should pay for it.
"To describe the cost of the courts as a 'burden' is extraordinary.""To describe the cost of the courts as a 'burden' is extraordinary."
The faculty highlighted Unison's successful appeal to the UK Supreme Court against fees for employment tribunals, which were found to be unlawful because of their effect on access to justice.The faculty highlighted Unison's successful appeal to the UK Supreme Court against fees for employment tribunals, which were found to be unlawful because of their effect on access to justice.
'No moral and philosophical justification''No moral and philosophical justification'
The faculty added: "The consultation paper notes that the UK Supreme Court held that fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice.The faculty added: "The consultation paper notes that the UK Supreme Court held that fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice.
"That is no justification for a regime aimed at recovering the whole cost of the courts, or as much of the cost as possible, from litigants rather than the taxpayer."That is no justification for a regime aimed at recovering the whole cost of the courts, or as much of the cost as possible, from litigants rather than the taxpayer.
"In fact, one can infer from the judgments in Unison v Lord Chancellor that the UK Supreme Court would be likely to find such a fees regime illegal and ultra vires.""In fact, one can infer from the judgments in Unison v Lord Chancellor that the UK Supreme Court would be likely to find such a fees regime illegal and ultra vires."
The faculty also raised concerns that the fees regime could deter people with legitimate claims from bringing them to court.The faculty also raised concerns that the fees regime could deter people with legitimate claims from bringing them to court.
It said: "The purpose of the fees regime is to avoid paying for the courts from general taxation. The principle underlying the fees regime is that the user pays.It said: "The purpose of the fees regime is to avoid paying for the courts from general taxation. The principle underlying the fees regime is that the user pays.
"The moral and philosophical justification for this has never been explained."The moral and philosophical justification for this has never been explained.
The Faculty of Advocates considers that it cannot be explained."The Faculty of Advocates considers that it cannot be explained."
A Scottish government spokesperson said: "Fees in Scotland remain significantly less than in England and Wales and those who cannot afford to make a contribution will continue to be protected by a generous system of exemptions.
"The Scottish government's consultation on court fees proposes a modest increase in existing fees, in line with inflation.
"Those proposals were informed by our consideration of issues arising from the UK Supreme Court ruling in Unison v Lord Chancellor, which related to employment tribunal fees.
"Careful consideration will be given to all responses to the consultation on court fees, prior to taking forward our proposals."