In R(on the application of UNISON) v Lord Chancellor  UKSC 51, the Supreme Court gave an important judgment regarding the importance of access of justice. The Supreme Court held that the fees imposed by the Lord Chancellor in employment tribunal and employment appeal tribunal cases were unlawful.
UNISON challenged the 2013 imposition of fees as an unlawful interference with the right of access to justice under the common law and under EU law, a frustration of the operation of Parliamentary legislation granting employment rights, and an unlawful discrimination against women and other protected groups.
The imposition of fees had been justified by the Government on the basis of transferring some of the cost of the system from the general tax payer to the system’s users; incentivising early settlements, and discouraging pursuing weak or vexatious claims.
Lord Reed gave the lead judgment. He began by highlighting the importance of Employment Tribunals as being “the only forum” in which numerous employment related claims could be brought, and that “In order for the rights conferred on employees [by Parliament] to be effective, and to achieve the social benefits which Parliament intended, they must be enforceable in practice.” He noted that Employment Tribunals were intended to deal with issues of minor or even no financial value, but which had social importance, and that this was previously reflected in part in the absence of fees.
Lord Reed analysed the fee structure imposed by the Lord Chancellor, in particular contrasting it with the fees payable in civil small claims. He identified that the fees had no relation to the amount sought and accordingly “can therefore be expected to act as a deterrant to claims for small amounts and non monetary claims.” In relation to the regulations regarding the remission of fees, he noted that ” A couple each earning the national minimum wage would…not normally qualify for any remission of fees for a type A claim, but might qualify for partial remission of the hearing fee for a type B claim.”
Lord Reed acknowledged that following the imposition of fees, the practice of the Employment Tribunal had changed to generally awarding fees to successful parties. However, he held that it was necessary to take into consideration the practical obstacles facing a potential Employment Tribunal claimant in estimating accurately his or her chances of success prior to bringing a claim. He went on to hold that:
“More fundamentally, the right of access to justice, both under domestic law
and under EU law, is not restricted to the ability to bring claims which are successful.
Many people, even if their claims ultimately fail, nevertheless have arguable claims
which they have a right to present for adjudication.”
Lord Reed noted that a number of typical ET awards had no financial content even if successful, yet due to their assessed complexity required payment of the higher band fees.
Lord Reed then assessed the impact of the fees. He highlighted the “dramatic and persistent fall in the number of claims” – between 66 and 70%. Furthermore, there had been ” a greater fall in lower value claims, such as claims for unpaid wages and unpaid annual leave, and in claims in which a financial remedy was not sought.”
Lord Reed summarised the Government’s position as:
“More fundamentally, the implicit premise … is that anyone who does not qualify for full remission will, in all but exceptional cases (which can be addressed by the discretion to remit in exceptional circumstances), have non-essential income or capital which can be used to pay the fees. It is on that basis that the Lord Chancellor argues that legal requirements as to access to justice are satisfied.”
Lord Reed drew upon the Joseph Rowntree Foundation research regarding minimum income standards to assess the reality of the Government’s imposition of fees and approach to defining non essential spending and the sacrifices required in order for potential claimants to be able to afford the necessary fees. He stated that “More fundamentally, the question arises whether the sacrifice of ordinary and reasonable expenditure can properly be the price of access to one’s rights.”
With regards to the objectives of the imposition of fees, Lord Reed noted that the transfer of cost to users from taxpayers had been less apparent than was predicted, in part because the number of users had fallen. Furthermore, the proportion of successful claims was lower, not higher after than introduction of fees.
Lord Reed then went onto consider the relevant legal principles. He held that there were two principles of particular importance – (1) the constitutional right of access to the courts, and (2) specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act.
Lord Reed gave a powerful exposition as to why access to the courts was a core element of the rule of law, and why being able to bring a claim and have it determined was of a broader societal benefit than merely to the individual parties involves, holding:
“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… People and
businesses need to know, on the one hand, that they will be able to enforce their
rights if they have to do so, and, on the other hand, that if they fail to meet their
obligations, there is likely to be a remedy against them. It is that knowledge which
underpins everyday economic and social relations.”
Furthermore, he held that “impediments to the right of access to the courts can
constitute a serious hindrance even if they do not make access completely
impossible….even 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 Daly, the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve.”
Lord Reed concluded that “In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission. The evidence now before the court, considered realistically and as a whole, leads to the conclusion that that requirement is not met…. Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. 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.”
In addition, the mismatch between the level of fees and the low or non existent financial awards in many Employment Tribunal cases could make it futile or irrational to bring a claim.
Lord Reed held that the Fees could not be justified as a necessary intrusion on the right of access to justice, in part because when applying elementary supply of services economics: “In the present case, it is clear that the fees were not set at the optimal price: the price elasticity of demand was greatly underestimated. It has not been shown that less onerous fees, or a more generous system of remission, would have been any less effective in meeting the objective of transferring the cost burden to users”
Lord Reed also held that “Given the conclusion that the fees imposed by the Fees Order are in practice unaffordable by some people, and that they are so high as in practice to prevent even people who can afford them from pursuing claims for small amounts and nonmonetary claims, it follows that the Fees Order imposes limitations on the exercise
of EU rights which are disproportionate, and that it is therefore unlawful under EU
The two most noteworthy elements to the Supreme Court’s judgment are that (1) its decision was grounded in the common law, not EU law, which is not unsurprising in light of Brexit; and (2) the Court examined on an in depth analysis of the rational and factual basis for the Government’s decision. Looking further ahead, this may be a suggestion of potential clashes to come if indeed it is the case that Brexit requires the wholesale use of Henry VIII clauses to determine delicate questions of social and economic rights.