Authors:Douglas Johnson
Last updated:2023-09-18
“R (Unison) v Lord Chancellor is a cheering reminder of the fundamental reason why the courts and tribunals are there.”
The Supreme Court case of R (Unison) v Lord Chancellor [2017] UKSC 51 is a delight worth reading. Simply put, the fees scheme is unlawful because it has the effect of preventing access to justice. That conclusion is based on established common law principles, carefully read and considered. The fact that conclusions under EU law come to the same effect does not ultimately matter.
The lead judgment of Lord Reed is not only an excellent and definitive outcome of the troubling saga of employment tribunal fees, but is also an elegant essay on the fundamental role of the courts in society.
The judgment also reminds us that what matters is practical reality. Enforcement of rights through the courts and tribunals is key to the working of the law. In order for rights to be effective and to achieve the social benefits that parliament intended, they must be enforceable in practice. In stating this, the Supreme Court does much to reassure the public that the courts are prepared to deliver judgments that relate to real life.
Lord Reed identifies two key principles of constitutional law, warning the reader it is not enough to look only at the text of the law: it is also necessary to understand the constitutional principles that underlie the text and the principles of statutory interpretation that give effect to them.
One of these principles concerns ‘backdoor’ attacks on established rights: the rule that ‘[s]pecific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act’, as set out in R v Secretary of State for Social Security ex p B and Joint Council for the Welfare of Immigrants [1997] 1 WLR 275. In other words, an arbitrary fees scheme under the Tribunals, Courts and Enforcement Act 2007 must not take away substantive rights under the Employment Rights Act 1996, the Equality Act 2010 or any other primary legislation.
In a delightful understatement, Lord Reed notes (at para 66) that ‘[t]he importance of the rule of law is not always understood’. The government’s approach to fee-charging was based on its view of employment tribunals as a consumer service, only of relevance to people with actual claims to bring. Lord Reed explains why this is wrong, in a fantastic paragraph (68), which just has to be quoted in full:
At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the parliament which makes those laws includes members of parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by parliament may be rendered nugatory, and the democratic election of members of parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.
Lord Reed neatly illustrates this by referring to the more than 60 pieces of case law relied on by the lord chancellor in submissions, each of which is an example of an individual case contributing to wider society by establishing a proposition of law.
This judgment – complete with references to Magna Carta, Sir Edward Coke and Donoghue v Stevenson [1932] AC 562 – is a treat for law students, who can now bin all their other materials on constitutional law. But for anyone battling on with daily casework, legal aid or otherwise, in what seems like an increasingly thankless task, it is a cheering reminder of the fundamental reason why the courts and tribunals are there and why we help people use them. They are a necessary part of a democracy. They benefit the whole of society, both people who take proceedings and those who never do.