When Access to Justice Depends on the Balance Sheet

Internal Scottish Government material released under Freedom of Information law shows that concerns about affordability and access to justice were being raised throughout a court fee consultation at the same time as the courts service budget had already been built around the assumption that the increases would proceed.

Courts are not ordinary public services. They are not comparable to a leisure centre, a licensing office, or a planning portal. Access to courts determines whether a person can defend themselves against a charge, challenge an unlawful decision, appeal a conviction, or exercise a legal right at all. That distinction matters when considering what happens when the cost of using them rises.

Material disclosed under Freedom of Information law, including the full response and a ministerial submission, shows that responses to the 2026 and 2027 court fee consultation were described as "almost all opposed" to the proposed increases. The objections raised concerns about affordability, cumulative fee impacts, and the practical effect on access to justice.

The same material states that the Scottish Courts and Tribunals Service budget "has been based on the assumption of an increase in court fees coming into effect in April 2026".

That sentence repays careful reading. The consultation had not concluded. The objections had not yet been formally addressed. But the financial planning had already assumed the outcome.

The proposed increases were expected to generate an additional £3 million in revenue. That figure matters in this context not as an abstract line in a budget document, but as money expected to come from people using the court system, including people raising civil claims, challenging decisions, or pursuing appeals.

Advice organisations told the consultation that even relatively modest fee increases could disproportionately affect people on low incomes, or those positioned just above exemption thresholds. Amnesty International UK and others raised concerns about the potential effect on effective access to justice under Article 6 of the European Convention on Human Rights, the provision protecting the right to a fair hearing before an independent tribunal.

The disclosed material does not establish that the proposed increases are unlawful. It does not demonstrate improper conduct by Ministers or officials. But it does show that affordability concerns and institutional financial pressures were being discussed together, throughout the same process, at the same time.

That is the structural tension the material discloses. Not a conspiracy. A system in which consultation and financial planning appear to have been running in parallel rather than in sequence.

The disclosed material also clarifies the position on the proposed Court Fee Working Group. Earlier responses to Freedom of Information requests had suggested that the group was not yet operational and that limited substantive material existed. The fuller picture is different. Annex A records that preparatory work had already begun on what officials described as a "root and branch" review of court fee structure. Discussions were underway with SCTS to establish the Working Group and agree its terms of reference.

A working group that has not formally entered operation is not the same as an absence of activity. The distinction matters because earlier communications implied the latter. The disclosed material shows internal planning, financial modelling, consultation preparation, and ministerial engagement were already in progress.

It also shows that the fee increases themselves were expected to come into effect before the review concluded. The structural change was scheduled to precede the structural examination.

The question of court fees connects directly to an issue this site has examined in detail: transcript access. In the context of appeals and post-conviction review, the official record of proceedings is not incidental material. It is the foundation on which legal errors are identified, judicial directions are examined, and the safety of a conviction is tested. Affordability shapes access to that record in the same way it shapes access to the courts themselves.

The Scottish Government has already acknowledged this principle in a limited context. The Victims, Witnesses and Justice Reform (Scotland) Act 2025 provides for certain complainers in rape and serious sexual offence cases to receive trial transcripts without charge. That provision does not extend to convicted persons seeking to challenge their convictions. But its existence reflects a recognition that the cost of obtaining court records is capable of affecting meaningful access to justice in practice. That principle does not stop applying once it becomes inconvenient to extend it.

The issue raised by this material is not, in the end, simply whether court fees should increase. Fee decisions involve genuine institutional pressures, and courts require sustainable funding. Those are legitimate operational concerns.

The harder question is what it means for public confidence in a justice system when affordability concerns and financial planning increasingly occupy the same space, when consultations proceed alongside budgets already built on their conclusions, and when the cost of using the system continues to fall on those the system is there to serve.

Related coverage on this site: The Working Group That Isn't, which examined the earlier position on the Court Fee Working Group and transcript access governance.