The rule of law fights back

The recent Supreme Court decision on employment tribunal fees is a victory for our constitution. This is the rule of law, in action.

Geoffrey Bindman
4 August 2017

Grayling's imposition of high, blanket fees for bringing a claim in the Employment Tribunal caused a reduction of approximately 70% of claims. Press Association/Nick Ansell. All rights reserved.

If, in the words of Abraham Lincoln, government is of the people, by the people and for the people, the independent role of the courts and the judiciary is crucial. The executive functions of government, exercised by the cabinet moderated only partially by elected members of Parliament, must be carried out lawfully, and it is the job of the judges to make sure they are.

The Supreme Court has now ruled in favour of a challenge by the trade union Unison to the imposition of fees (by the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013) on those seeking justice in the employment tribunals. Their decision to declare charging fees for access to the tribunals illegal is of fundamental constitutional importance. Judges are no longer merely the interpreters of the law. Nor is their responsibility limited to seeing that it is enforced. The law, as the Supreme Court has now determined it to be, requires the judges to ensure that access to justice is available to all.

The employment tribunals – at first called industrial tribunals – were established in 1964. Following the Donovan Report of 1968 their jurisdiction was extended to remedy the violation of nearly every kind of employment right, regardless of any financial value. Recognising the vulnerability and unequal economic power of workers the tribunals were designed to be informal and inexpensive. No fees were charged to claimants.

We cannot know how many valid claims were not brought because of the cost of doing so but there must have been many, each one a denial of justice.

Although the ideal of informality was never fully achieved – the employers used lawyers and the claimants could be at a disadvantage if they did not – the tribunals were popular and effective. The very existence of a potential remedy for bad behaviour by employers was a useful deterrent.

The Fees Order was made under statutory powers by Christopher Grayling – possibly the least respected Lord Chancellor in the long history of that office. He argued that charging fees would discourage bogus and vexatious claims. There was no evidence that this was a problem but employers, who stood to benefit from the suppression of all claims, valid or not, naturally supported him. He also argued, perhaps more plausibly, that the users of the service should pay for it, rather than the taxpayer.

The fees were high. For straightforward cases the figure was £390 – £160 on making the complaint and another £230 if there was a hearing. For more complex cases it was £1200 – an issue fee of £250 and a hearing fee of £950. Remission of fees could be granted, but only in strictly limited circumstances. Given the uncertainties of all litigation and the size of these figures, It must have been blindingly obvious, even to Mr. Grayling, that these fees would discourage many claimants, whatever the merits of their claims. So it proved. There was, to quote Lord Reed in the Supreme Court:

a dramatic and persistent fall in the number of claims brought in ETs. Comparing the figures preceding the introduction of fees with more recent periods, there has been a long-term reduction in claims accepted by ETs of the order of 66-70%.

We cannot know how many valid claims were not brought because of the cost of doing so but there must have been many, each one a denial of justice.

Yet the question remains: was the Order imposing fees lawful? The governing statutory provision, section 42(1) of the Tribunals Courts and Enforcement Act 2007, empowers the Lord Chancellor to prescribe fees for any specified tribunal. That is what he did. But can that apparently clear cut statutory authority be overridden by a more fundamental principle? Is access to justice the trump card?

The courts are not merely a public service but an essential feature of a society governed by the rule of law. 

Unison began its legal campaign in 2013 challenging the Fees Order as a breach of EU law requiring effective access to a tribunal and of the Public Sector Equality Duty imposed by the Equality Act 2010. These challenges failed in the Divisional Court and again in the Court of Appeal, which was (surprisingly) not satisfied that the fees charged were unaffordable. The appeal to the Supreme Court was argued on the basis that the making of the Fees Order was not a lawful exercise of the statutory powers because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups. The right of access to justice, Unison claimed, is not just a matter of EU law but is a fundamental principle of the common law and – as Lord Reed says in the Supreme Court judgment “has long been deeply embedded in our constitutional law”.

Lord Reed’s masterly analysis (you can read it in full here) was endorsed by all the other judges. He pointed out that the courts are not merely a public service but an essential feature of a society governed by the rule of law. They cannot do their job of ensuring that the laws made by Parliament and the common law are applied and enforced unless people 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.”

Thus the law is not there just to provide a service to those who have a dispute:

People and businesses need to know 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.

Lord Reed reviewed relevant legal history, including chapter 40 of Magna Carta: “We will sell to no man, we will not deny or defer to any man either Justice or Right”. Subsequent case law is consistent with the principle that “a citizen’s right to unimpeded access to the courts can only be taken away by express enactment.” In the case of the Fees Order the governing statutory provision did not authorise the prevention of access to the relevant tribunals. Yet he concluded that access was prevented and this was enough to make the Fees Order unlawful.

Where do we go from here? The government immediately accepted the decision and fees have already been cancelled for employment tribunals. The government has promised to repay all fees paid since the Fees Order came into force. But what about access to the courts and to justice more generally?

Fees are by no means the only barrier to access. Legal aid has been drastically restricted. Legal and advice centres have closed or reduced services through lack of funding. Many solicitors have given up legal aid. Court staff has been reduced and courts closed. All these cuts deny access to justice for many people who cannot afford to pay for legal advice and representation. Will the courts use their newly minted power to give them access? Some of us will be eager to put them to the test. The judgement in this case could mark the turning of the tide in favour of those who seek justice.

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