Facts

In October 2013 the Lord Chancellor made an order (SI 2013/1893) that imposed a set of fees for those wishing to bring a claim before the Employment Tribunal (ET) or Employment Appeals Tribunal (EAT); i.e. fees to be paid for accessing the tribunal service, not ordinary legal fees. The fee to be paid depended on the nature of the claim being brought (type A or B); whether the claim was brought by a single, or multiple applicants; and whether it was heard by the ET or EAT (see [17–19] and also [2], [10]). Previously no fee had been charged (see [8]). In 2011, the government argued that there were good policy reasons for introducing fees (see [9], [11] but cf. [56–59]).

UNISON, a trade union, and a number of interveners argued that the imposition of fees was outwith the powers granted to the Lord Chancellor under s. 42(1) of the Tribunals Courts and Enforcement Act 2007, vis-à-vis fee setting. They contended that ‘the prescribed fees interfere[d] unjustifiably with the right of access to justice under both the common law and EU law’ (at [3]) because they inhibited the enforcement of employment rights granted by Parliament, and were discriminatory (at [3]).

Following the introduction of the fees regime there was ‘a dramatic and persistent fall in the number of claims brought … of the order of 66-70%’ (at [39], see also [45–47]). The government, when designing the system, had sought to mitigate concerns over accessibility, and the risk of obstructing legitimate applications from less financially secure claimants, by introducing a fee remission system (see [11], see further [21–25]).

This note deals principally with the concept of access to justice as a constitutional right through the lens of the ET/EAT fee regime, and reflects more generally on the interaction between the common law, the rule of law, and parliamentary sovereignty in the context of statutory interpretation.

Decision

Lord Reed, speaking for the other justices, started his judgment by noting that, if legal rights are to have meaning, ‘they must be enforceable in practice’ (at [6], see also [8]). A number of disincentives to enforcement in this context were identified by the Court (e.g. at [20], see also [40–42]). Additionally, the Court implied that the fee remission system designed to mitigate these disincentives was not logically constructed, there being ‘no explanation of how … any of the … figures relating to remission were arrived at’ (at [21], see also [24]). In any event, the remission power was ‘rarely … exercised’ (at [44]; see also [24], [50–55]).

To counter the claim that the fee scheme obstructed access to justice, it was argued by the Lord Chancellor that many of the costs perceived as essential could be foregone for a period in order to save to pay the fees (at [52], [54]). The Court viewed this as a mischaracterization of the nature of the costs, and as misunderstanding the procedural requirements of the ET (at [55]). In any event, these considerations masked a more fundamental question: ‘whether the sacrifice of ordinary and reasonable expenditure can properly be the price of access to one’s rights’ (at [55]). The Court thought not, and found the Lord Chancellor’s exercise of the fee-making power unlawful (at [98], see further [90–97], [119]).

Comment

The decision of the Court primarily rested on an analysis of the constitutional right of access to the courts set in its wider constitutional context (at [65], but note [103–104]). Thus, the limits placed on the Lord Chancellor’s use of the fee making power were justified by, inter alia, the rule of law and common law constitutional rights (at [87–89]). The Court grounded the basis of this long-established (see e.g. [74–85]) right squarely within the rule of law (at [66–68]). To supplement the case law underpinning this position, the Justices also reflected on the constitutional character of judicial work more generally. They reasoned that the provision of justice cannot be thought of as being just like any other public service (at [66]); it provides wider, trans-generational socio-economic functions that transcend individual concerns (at [69–73]; unpacked further in Tomlinson (2017) 39(4) J Soc Wel & Fam L 524, at 530–7).

This defence was praised, and further developed, by Elliott (2018) 77(1) CLJ 5, at 5, who called the judgment:

… a tour de force that ought to be compulsory reading for every Minister and parliamentarian that elucidates the true value of independent courts … illuminates the common law’s potential as a guarantor of basic rights, and reiterates an axiomatic set of constitutional home truths

The principal achievement of UNISON, Elliott says (at 6–7), is to have explained how the courts will use the common law, and the concept of the rule of law, to interpret the legislative language of Parliament. Murkens (2018) 77(2) CLJ 349 sees this as evidence of the UKSC’s willingness to face constitutional questions directly, ‘with the modus operandi of a constitutional court’ (at 368), tackling both the structural and conceptual elements that provide the context for understanding constitutional questions (at 368–9).

Wider Questions

Lord Reed said that a right of access to justice entails the right to bring a claim ‘even if [it] ultimately fail[s]’, because access to justice means a right to bring ‘arguable claims … for adjudication’ (at [29], emphasis added). Thinking about this statement, and the rule of law as expressed by, among others, Dicey, Raz, and Bingham, what challenges face those wishing to bring claims before the courts today? To answer this question you may want to reflect on Eicke’s (2018) 1 EHRLR 22 observations about the provision of legal aid and the European Convention on Human Rights (at 24–6).

Murkens argued that UNISON, and other cases, demonstrate that ‘automatic deference to Parliament … is crumbling’, suggesting that this has been replaced with a ‘corrective’ approach, likening the judges to constitutional ‘mechanics’ (at 374). Looking at Murkens’ comments, and considering the arguments of those writing on political and legal constitutionalism (for example Griffith (1979) 42(1) MLR 1), do you think it is now time for an ‘honest discussion’ (Murkens, at 374) of the Supreme Court’s place in the United Kingdom’s constitutional framework?