Scottish court fees 2022 to 2025: equality impact assessment

Stage 1: Framing

Results of framing exercise

11. This impact assessment is intended to accompany the proposals on which consultation took place. It takes into account the equality impact assessments published for the Courts Reform (Scotland) Act 2014 (the 2014 Act)^[5] and the 2018 Act. This is particularly pertinent to the fees orders relating to the new courts established by the 2014 Act.

"In relation to the civil court reforms (e.g. national personal injury court [i.e., the Sheriff Personal Injury Court]; Sheriff Appeal Court) these issues were considered when the Courts Reform Act was being developed. Overall, the Equality Impact Assessment on the Courts Reform (Scotland) Bill found that none of the groups with protected characteristics would suffer disproportionately as a result of the interaction of the measures in the Bill with their protected characteristic."^[6]

12. The Scottish Government fully considered access to justice issues such as affordability for court users when developing proposals to increase fees. Factors such as affordability and the level of fee in relation to the value of claim have historically been taken into account when setting fees.

13. A particular factor to be considered since court fees were raised is provided by the recent UK Supreme Court Judgement in Unison v Lord Chancellor [2017] UKSC 51^[7] regarding fees charged for access to the Employment Tribunals. The Court specifically commented, ''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 test is, in essence, do the fees effectively prevent access to justice. The Scottish Government has seen no compelling evidence that it does.

14. The consultation noted that the Scottish Government has due regard for the judgment and believes that maintaining access to justice must be a paramount consideration in developing and revising fee charging regimes such as the system for court fees.

15. Further, the Scottish Government considers it vital that the extensive system of exemptions is maintained and special consideration is given to the parts of the court system that might give rise to particular concerns about access to justice for vulnerable people.

16. These considerations have always played a part in the setting of court fees. For example, the last fees orders in 2016 & 2018 largely protected fees for divorce from increases and introduced new categories of exemptions for those in receipt of a payment from the Welfare Fund. Evidence suggests that divorce fees are more often paid by women and fees can be particularly onerous for women who are leaving abusive relationships. In addition the 2016 order protected fees in the Sheriff Personal Injury Court as the cases in that court may often involve vulnerable people.

17. At the time of the Court Fees Review in October 2021, the Scottish Government proposed a 2% rise in fees to cover inflation. This was despite the Consumer Price Index indicating inflation would be 3.5% in November 2021 rising to 5% in 2022 before falling to 2.8% in 2024. According to the Office of Budget Responsibility in its 'Economic and fiscal outlook - March 2022'^[8], the Consumer Price Index was at 5.5% in January 2022, and is expected to rise to 9% in the fourth quarter of this year and fall back to 4% in 2023. However, the Scottish Government has no plans at present to increase court fees by more than 2%, much less than the current and projected rate of inflation.

Environmental

18. There is nothing to suggest that there would be an environmental impact from these proposals beyond the issue about the bringing of Aarhus environmental actions noted above. Environmental groups have expressed considerable concern about the cost of bringing judicial review and statutory appeal in Aarhus environmental cases in the Court of Session. As part of the Scottish Government's strategy to make such cases more affordable, and to make such cases more compliant with Article 9(4) of the Aarhus Convention, the Court of Session Fees Order 2022 exempts such cases from court fees.

Rural Impact

19. As the proposals are to increase fees charged by court services across all of Scotland, both those living in urban and rural areas will be affected in the same way. There will be, therefore, no particular impact on rural communities. The Judiciary and Courts (Scotland) Act 2008 (Scottish Land Court) Order 2017 transferred responsibility for the administration of the court to the Scottish Courts and Tribunal Service. The Land Court deals with cases of particular impact on rural communities. However, the Scottish Land Court sets its own fees; this is not the responsibility of the Scottish Government.

Enforcement/Sanctions/Monitoring

20. Nearly all fees are paid for in advance of the service so the sanction for non-payment is that the service will not be performed. The proceedings may be struck out if the fee is not paid.

Extent/Level of EQIA required

21. A full 12-week public consultation took place and is likely to be seen by range of consultees. Those who responded to the consultation include those who are directly involved with the legal process such as legal professionals and organisations in the justice system. Additionally, organisations with an interest in legal issues through their concern for the welfare of the public in general or specific groups of people have typically responded as have a number of individuals who with an interest. There were also two individual responses.

22. Question 7 of the consultation asked: "Do you consider that any of the proposals in this consultation paper are likely to have a disproportionate effect on people or communities who face discrimination or social exclusion owing to race, age, gender, disability, sexual orientation, or any other factor? If so, please specify your views on the possible impact.?"

23. The Faculty responded: "Insofar as the consultation paper proposes a continuation of the current regime of court fees, the Faculty considers the proposals likely to have a disproportionate effect on people or communities who face discrimination or social exclusion by reason of race, age, gender, disability, sexual orientation and other factors. That disadvantage should not be measured only by the number of cases in which such factors are specifically pled as grounds of challenge or complaint."

24. In contrast, the Law Society stated: "We are not aware of any data that shows a disproportionate effect on people or communities with protected characteristics in relation to court fees."

25. The Scottish Government is better informed on equality issues as a result of the previous consultation which concluded in 2018. In particular, a helpful response was received from the Equality and Human Rights Commission which highlighted the potential for decline in numbers of equality and human rights legal challenges as a result of higher court fees. Based on the responses to the 2016 consultation, the previous fee consultation entitled "Consultation on Proposals for Fees Charged by the Court of Session, Accountant of Court, Sheriff & Justice of the Peace Courts, High Court, Office of the Public Guardian, Personal Injury Court and the Sheriff Appeal Court", which ran from
23 February 2015 to 15 May 2015, the group that is most likely to be affected by the proposals is that of those on incomes just above the level that would qualify for exemption. There are no data to suggest that any of the protected groups would appear to be disproportionately affected.

26. However, the issue of court fees as part of the cost of court actions needs to be taken in context. In most cases the court fees form a small proportion of the cost of legal proceedings and, as mentioned, a successful party in civil litigation will be entitled to have court fees paid by them reimbursed by the unsuccessful party. Further, through the 2018 Act, the Scottish Government has increased the availability and attractiveness of success fee agreements so that many pursuers will not have to pay up front court fees in practice.

27. The Scottish Courts and Tribunals Service (SCTS) will continually monitor cost recovery from the courts and keep the fees regime under review. This will be informed by the data available from the operating Integrated Case Management System and by further assessment of the impact of the court reforms such as the new group proceedings, increased digitalisation as a result of the SCTS digital strategy and the coronavirus pandemic.