Plans to introduce court fees for people taking legal action in Scotland are believed to be "illegal", advocates are warning.
The Faculty of Advocates has written to the Scottish Government opposing plans to increase court fees over the next three years.
An increase of 2.3 per cent is planned for April, followed by further two per cent rises in April 2019 and 2020.
The government claims the increases are needed to ensure the fees cover the cost of the civil justice system.
In its consultation on the plans, the government argues 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 has been opposed to the fees since their introduction and claims that as a matter of principle, the civil justice system should be funded by the state, not litigants.
In its consultation response, the faculty states: “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.”
The faculty highlights 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 charges, introduced in 2013, were meant to prevent opportunistic claims by employees, but critics said they had led to an 81 per cent drop in all cases, effectively denying access to justice from those wrongfully sacked or mistreated.
The Supreme Court ruled the government had acted both unlawfully and unconstitutionally when the fees were brought in.
Speaking about that decision, the faculty states: “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.
“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 raises concerns that the fees regime could deter people with legitimate claims from bringing them to court.
It added: “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 Faculty of Advocates considers that it cannot be explained.”
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereLast Updated:
Report this comment Cancel