The successful challenge to employment tribunal (ET) fees brought by the trade union Unison (R (Unison) v Lord Chancellor [2017] UKSC 51) has been welcomed by many (see, for example, September 2017 Legal Action 8–9). The case is an important constitutional milestone and could have a wide impact on access to justice (indeed, its effect is already being seen in recent increases in ET claims), but it has also fed a debate about judicial activism in developing new laws.

Policy Exchange, the right-wing think tank, published a paper last week which argued that judges were straying into the field of policy-making in the Unison case (Second-guessing policy choices: the rule of law after the Supreme Court’s Unison judgment). At the launch event on 14 March, the paper’s author, Sir Stephen Laws, said the courts did not have the right ‘to second-guess policy choices with the benefit of hindsight’.

As first parliamentary counsel until he retired in 2012, Sir Stephen spent his career, in his words, ‘grappling with the interface between law and politics’. His argument seems to boil down to two main points: judges don’t have the necessary overview to get involved in allocating resources; and, most importantly, while politicians can get it wrong in passing legislation that has unforeseen consequences, it’s up to parliament to put this right, not unelected judges.

Professor Anne Davies, dean of the Oxford Law Faculty, put the counter-arguments to his paper. Speaking at the launch, she said that the Unison case was ‘not about process, but whether rights had been infringed’ and that ‘judges have to be careful in the area of resource allocation, but I don’t think they’ve over-stepped any boundaries in this case’. She also made the point that the introduction of fees ‘could have been lawful if they had been less’, but the correct question was whether the fee scheme was ‘proportionate, not if it hit the right price point’.

I must admit, I’ve not checked the Democratic Unionists’ position on the tribunal fees, but I rather suspect we are in the fortunate position of still having no fees for ET cases because of the lack of an overall government majority. An administration with a good majority might have done enough to satisfy the judgment and introduced an adjusted scheme.

One of the great ironies of the Unison judgment is that it uses the development of common law to protect workers’ rights, when for centuries the opposite happened. For example, in the notorious Taff Vale case (Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC 426), the court relied on the tort of conspiracy to hold a union liable for the employer's loss of profits caused by industrial action. Legislation subsequently passed by parliament ensured that judicially created common law restrictions on workers’ rights were removed.

The argument against judicial power is put from a left-wing perspective in a series of essays also published by Policy Exchange (Judicial power and the left). In one of these, Danny Nicol, professor of public law at the University of Westminster, argues that ‘[w]hen the left favours socialism, it seeks to restrain judicial power, mindful that the judiciary may present a threat to a radical, interventionist programme’ (The left, capitalism, and judicial power, January 2018). In another (Deference, partnership, and defiance, January 2018), Alan Bogg, professor of labour law at the University of Bristol, suggests that the judiciary has a responsibility to uphold the rights of the citizen against threats from ‘powerful public or private actors’ and ‘to protect the vulnerable from abuse of power’. I’d argue that the Unison judgment can be viewed as part of this tradition: it has firmly embedded in law a constitutional right to access to justice and is likely to lead to further challenges to justice policy including legal aid.

With the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the government has been on the wrong side of a number of judgments (see, for example, February 2018 Legal Action 13). The Law Society commissioned research on the impact of the means test on people with low incomes qualifying for legal aid. This research can be seen as a shot across the bow for the government, as it puts it under pressure to review the rules or face a challenge along similar lines to Unison.

In Unison, the Supreme Court looked in detail at the income levels of families who would be deemed by the government to be able to meet the cost of bringing a claim in the ET. Lord Reed concluded: ‘Where households on low to middle incomes can only afford fees by sacrificing the ordinary and reasonable expenditure required to maintain what would generally be regarded as an acceptable standard of living, the fees cannot be regarded as affordable’ (para 93). I’d suggest that this could be readily transposed almost intact into a judgment on the legal aid means test.

Prior to LASPO, previous Acts governing legal aid allowed adjustments of scope to be made by secondary legislation. LASPO was different as it put scope into primary legislation as a deliberate ploy to avoid challenges through the courts. Ministers were fully aware that the measures would have a disproportionate effect on the poorest and most vulnerable, but argued that difficult choices had to be made as part of the government's austerity measures. The Unison judgment, as well as potentially calling into question the legality of the present legal aid means test, would also seem to put the scope of legal aid firmly within the sights of the judiciary. We shall see.