The Supreme Court’s judgment in R (Unison) v Lord Chancellor [2017] UKSC 51 1In which the Supreme Court ruled that the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 SI No 1893 was ultra vires as there was a real risk that the fees imposed by the Order meant people were effectively prevented from having access to justice, they could not be justified as a necessary intrusion on the right of access to justice, and were disproportionate. reads a lot like a legal love letter to those of us committed to access to justice. I’m thinking particularly of those lovely lines from para 66 onwards, where Lord Reed talks about the key principles underpinning the constitutional right of access to the courts. And because it is so deliciously domestic – a right inherent in the rule of law – we expect the love to stay and perhaps even blossom after Brexit. Lots has been said about the case and the access to justice principles that can be taken from it. But here I want to look briefly at the role of evidence in the Supreme Court judgment.

In reaching its conclusions, the court refers to the Ministry of Justice’s statistical evidence and the defendant’s own report based on HM Courts and Tribunals Service management information. The judgment is quick to note that even on the defendant’s own evidence, there had been sharp drops in the number of cases being issued and a greater fall in lower-value claims, such as claims for unpaid wages, since the imposition of fees under the Order being challenged. Weight was placed on the findings from a published Acas survey, that those who were unable to resolve their dispute through conciliation most frequently said they couldn’t proceed to issue a claim because they could not afford the fees. The judgment also refers to the evidence put forward by Unison, including a number of hypothetical claimants in low to middle income households.

What is really interesting to reflect on here is that the judgment does not refer to real people affected by the Order (and so there is no ‘victim’ within the meaning of the Human Rights Act 1998 – consequently, the case is developed outside the realm of article 6 duties). Instead, the appeal was developed on the affordability of the fees for hypothetical individuals using economic modelling based on the Joseph Rowntree Foundation’s ‘minimum income standards’ and the research of academics Abi Adams and Jeremias Prassl. On the basis of the evidence before it, the court was confident enough to assess that a real risk to access to justice had arisen from the sharp, sustained and substantial fall in the number of claims and was therefore unlawful.

The approach taken by Unison and its legal team gives organisations and NGOs looking to use the law – as well as those representing them – lots to think about. It was a creative and bold approach to building a systemic fairness case with a good grounding in rigorous research, using sound research methodology.

Many of us working in public law are also motivated to assist with systemic cases in order to maximise the positive impact of the work. However, relatively little time has been spent within the legal and academic community focusing on how successful systemic challenges have developed and the accompanying evidence base.2Frederick Powell, (2017) ‘Structural procedural review: an emerging trend in public law’, Judicial Review, 22:1, 83-104, is good further reading and some of these ideas are from his article. Also, watch out for upcoming PLP publications building on our research on the use of evidence in judicial review. It is something that PLP has been thinking about and it is worth sharing some of that learning here.

One working theory is that the courts’ expertise on judicial procedures is uncontroversial and therefore claims based on access to the courts – such as in Unison – are systems over which judges have particular authority. The second theory is the importance of distinguishing ‘teething troubles’ of new administrative systems (that may be explained away by defendants as problems with training or lack of experience, etc) from more structural and inherent unfairness problems (ie, arguments that are more likely to stick). It is important to note the differences between evidence of an unfair impact of a system with evidence of structural unfairness itself.3Ie, Laws LJ in Director of Legal Aid Casework and Lord Chancellor v IS [2016] EWCA Civ 464 at para 18: ‘ … the difference between an inherent failure in the system itself, and the possibility – the reality – of individual instances of unfairness which do not, however, touch the system’s integrity … ’

At the same time as looking at how Unison was successful in its claim, it is interesting to note that the judgment specifically refers (at para 99) to an absence of evidence supporting the defendant’s justification that the higher the fees are set, the more effective the transfer of cost from taxpayers to court users (which was the aim of the Order and relied on as justification by the defendant).

A similar point arose recently in a systemic fairness case that PLP brought for an individual, R (RF) v Secretary of State for Work and Pensions, and Mind and Equality and Human Rights Commission (interveners) [2017] EWHC 3375 (Admin), and it is an issue worth highlighting for other public law practitioners. In that case, RF challenged social security reforms that reduced the availability of benefits to those with mental health impairments. The Department for Work and Pensions (DWP) had not carried out any empirical research on the impact of the reforms on disabled people but insisted in evidence that its decision-making relied on robust testing. Once details were finally disclosed, an academic researcher, Professor Chris Hanretty, was instructed on behalf of RF to give his expert assessment of the DWP’s testing. After the first day of trial, the DWP accepted some of the limitations of the testing actually carried out. However, it maintained its position that in the absence of definitive empirical research, it was entitled to rely on the expert view of DWP officials and the testing.

Mostyn J responded to this boldly: ‘With respect, I cannot accept this. If a distinction with such a dramatic effect is to be drawn then elementary fairness surely requires that empirical research be commissioned. In the absence of any empirical research the view [ie, of the DWP medical expert] is no more than a subjective opinion or hypothesis’ (para 47). He went on to comment: ‘The wish to save nearly £1 billion a year at the expense of those with mental health impairments is not a reasonable foundation for passing this measure’ (para 59).

While RF indicates the evidential standard expected of defendants in future welfare reform and other cases where ‘elementary fairness’ is engaged, it is also useful to look more broadly at the courts’ approach to evidence in the two cases. In both cases, the judges responded confidently to the evidence before them. Both judgments also rely on the clear absence of evidence supporting the defendants’ initial public law decision-making under challenge, ie, the lack of empirical research underpinning the welfare reform in RF, and the lack of evidence supporting the primary aim of the Order in Unison. So, finally, at the same time as hopefully encouraging confidence in using research with casework generally, it is worth paying close attention to the evidential basis supporting defendants’ initial public law decision-making when considering systemic fairness cases.