“Without a fully functioning and accessible justice system, our laws will stagnate to the detriment of us all.”
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On 26 July 2017, a seven-justice Supreme Court in
R (Unison) v Lord Chancellor [2017] UKSC 51 confirmed the reach of the fundamental common law right of access to the courts and its significance for the rule of law. Fees introduced in the employment tribunal (by the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 SI No 1893) were ultra vires the Tribunals, Courts and Enforcement Act 2007 and in violation of the fundamental common law right of access to justice and EU law. The devastating effect of those fees on claims before the employment tribunal has been dissected in
Legal Action and beyond. Few readers will regret their demise.
It would diminish this judgment to treat it as a postscript to earlier iterations of common law principle. The lead judgment of Lord Reed includes a beautifully written exposition on the rule of law, the separation of powers and the role of the law and courts in society. It is written like a love letter to the rule of law, but works well as an aide-memoire for ministers. Future lord chancellors may find Lord Reed’s introduction to the rule of law tucked into their induction materials.
Legality, statutory interpretation and the rule of law
The key question was whether parliament had given sufficiently clear statutory authority to authorise the hindrance and interference posed to the right of access to justice by the operation of the fees regime:
[A] situation in which some persons are effectively prevented from having access to justice is not the only situation in which the Fees Order might be regarded as ultra vires … [E]ven where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation. As it was put by Lord Bingham in [R v Secretary of State for the Home Department ex p Daly
[2001] UKHL 26], the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve (para 88).
At the heart of the judgment is Lord Reed’s primer on the rule of law (at paras 66–75). Its language is stark, stressing that the concept is ‘not always understood’ and that ministerial ‘lack of understanding’ has been indicated in the treatment of the administration of justice as a public service like any other (para 66). It emphasises that the right of access to justice and to the courts is important not only for individual redress and for the development of the law, but in order to ensure respect for the laws promulgated by parliament:
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 … 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 (para 68).
Following a close analysis of the impact of the introduction of employment tribunal fees, the Supreme Court concluded that parliament had not authorised such a disproportionate interference with the right of access to the tribunals. The Fees Order was also in violation of EU law, in so far as access to the tribunal is required to give effect to EU law standards (including working time, discrimination, maternity discrimination and other challenges). That the decision stands on both sources of law is crucial in light of Brexit.
What now?
The government speedily announced that there will be a moratorium on fees and refunds to follow (‘
Government to refund tribunal fees after Supreme Court ruling, Ministry of Justice reveals’,
Independent, 26 July 2017; details of the refund scheme are expected to be announced later this month). Yet, there are many individuals who may have been unlawfully treated by an employer but did not pursue a claim for want of fees, who may also now seek a remedy.
The judgment has come under fire in some newspapers (see, for example, ‘
Furious bosses warn of a tide of employment tribunals after the Supreme Court rules ministers acted unlawfully in bringing in £1,200 charge to make a claim’,
Daily Mail, 27 July 2017). Those journalists, editors and business owners tempted to decry the justices as ‘enemies of the people’ should read the text of the judgment closely. The law’s value is for everyone. Without a fully functioning and accessible justice system, our laws will stagnate to the detriment of us all (see paras 67–69). Thus, Mrs Donoghue and her snail-tainted ginger beer created the foundations of the law of negligence. Her case mattered not only for her but for the shape of our law (see para 69). This principle is particularly important in a country without a written constitution. The Supreme Court recognises the clear limits of the common law and its own competence. Parliament is free to act (see paras 78–85). There is limited authority to suggest that the courts would not be constrained in their capacity to challenge clear steps by parliament to restrict common law rights, including access to justice (see
AXA General Insurance Ltd and others v Lord Advocate and others [2011] UKSC 46 at para 50).
Commentators now ask what other court fees might be ripe for challenge. However, for anyone reading the judgment of Lord Reed carefully, the importance of an independent and accessible judiciary in a modern constitutional democracy should be beyond question.