Superb and worrying article in the LRB. I’d like to know more about international parallels to this trend in the UK, as it strikes me this is a very important dimension to the emergence of post-democracy:
Unlike most other litigation costs, these fees must be paid up front; if you can’t pay, your claim won’t be heard. But not everyone with a claim to a large sum of money has £10,000 lying idle. Indeed, they might not have the money precisely because they have a good claim. If a builder works on a project for six months but goes unpaid, his cash reserves will start to run dry. And his bargaining position is weakened by the changes: the high price of issuing a claim creates an incentive to settle for less than he is owed. Employment tribunals are a stark illustration of the risks. Since July 2013, employees have had to pay as much as £1200 to bring a claim. Applications fell by 70 per cent, allegations of sex discrimination by 91 per cent. The explanation given by the minister for the courts and legal aid, Shailesh Vara, was that employees – objecting, for instance, to discrimination or to their employer’s failure to pay the minimum wage – are no longer ‘simply trying it on’. He gave no evidence to support this inference; nor did Gove when, in his evidence to the Commons Justice Committee on 15 July, he implied that claimants had been ‘too promiscuous’ in their use of tribunals. These assertions, it turns out, can be tested: if fewer people are now ‘trying it on’, fewer people should be losing cases; in fact, the proportion of cases won at employment tribunals versus cases lost has remained the same, which means that as many good claims are being abandoned because of cost as weak ones.