Supreme Court judgment: R (UNISON) v Lord Chancellor  UKSC 51
In R (UNISON) v Lord Chancellor, the Supreme Court held that employment tribunal fees were unlawful as they represented a statutorily unsanctioned restriction on the constitutional right of access to justice. The judgment has been rightly hailed as “the biggest victory in a court in British employment history” (Dave Prentis, general secretary of UNISON). However, the significance of this judgment extends far beyond employment law. It is a necessary reminder of the importance of the rule of law and the judiciary’s role in defending it.
Under s. 42(1) of the Tribunals, Courts and Enforcement Act 2007 (‘the 2007 Act’), “[t]he Lord Chancellor may by order prescribe fees payable in respect of” certain tribunals, including the Employment Tribunals and the Employment Appeal Tribunal (s. 42(3)). Pursuant to this power, the Lord Chancellor made the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (‘the Fees Order’). The Fees Order required individuals who wished to make use of the ET and EAT to pay a fee. Prior to the Fees Order coming into force, no such fees were payable.
The trade union UNISON sought judicial review of the Fees Order on the basis that it represented an unlawful exercise of the Lord Chancellor’s statutory powers. They argued that 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 in granting employment rights, and discriminate unlawfully against women and other protected groups’ (Lord Reed at ). This case note will focus on the core argument of access to justice under the common law.
Supreme Court Judgement: R (UNISON) v Lord Chancellor
The Supreme Court unanimously held that the Fees Order was ultra vires the Lord Chancellor’s powers under the 2007 Act. Lord Reed, with whom the seven-member court agreed, reached this conclusion by establishing: (1) the Fees Order restricted access to justice, and (2) such a restriction had not been authorised by the 2007 Act.
The Fees Order Effectively Restricted Access to Justice
The Supreme Court considered two main sources when analysing the effect of the Fees Order: the tribunal statistics, and a 2017 Ministry of Justice consultation paper which reviewed the introduction of fees (‘the Review Report’). The Lord Chancellor argued that to be unlawful, the evidence presented must demonstrate that access to justice had been prevented in specific cases. Lord Reed rejected this argument, holding that “the court does not require conclusive evidence [that the fees have prevented people from bringing claims], it is sufficient in this context if a real risk is demonstrated” (). On the evidence, the Supreme Court concluded that such a risk was present.
Lord Reed first stressed that the statistics painted a “general picture…[of] a dramatic and persistent fall in the number of claims brought in the ETs” (). Comparing the figures before the introduction of fees with more recent periods, there had been a 66-70% long-term reduction in the number of claims accepted by the ETs. This pointed to the conclusion that “a significant number of people who would otherwise have brought claims have found the fees to be unaffordable” (Lord Reed at ). Furthermore, approximately 10% of claimants whose claims were notified to ACAS but were not resolved said they did not bring proceedings because they could not afford the fees (). The Review Report suggested that claimants may have meant ‘unaffordable’ in the sense of being unwilling to reduce other areas of non-essential spending. However, Lord Reed noted that, “even if [this] suggestion is correct, it is not a complete answer.” Rather, (at ):
Fees must…be affordable not in a theoretical sense, but in a sense that they can reasonably be afforded. Where households on low to medium income 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.
Lord Reed then considered the impact the fees had on the value of claims. The statistics highlighted a greater fall in lower value claims and in claims where a financial remedy was not sought (). The Review Report suggested that where the fees were disproportionate to what was at stake in the proceedings, claimants were deciding they were not economically worthwhile. Lord Reed held this also amounted on a restriction on access to justice (at ):
It is not only where fees are unaffordable that they can prevent access to justice. They can equally have that effect if they render it futile or irrational to bring a claim…no sensible person will pursue [a claim for a modest amount] unless he can be virtually certain that he will succeed in his claim, that the award will include reimbursement of the fees, and the award will be satisfied in full.
The 2007 Act Did Not Authorise Restrictions on Access to Justice
The Importance of Access to Justice
Lord Reed was critical of the view that ”the administration of justice is merely a public service” of value only to those individuals who appear before courts and tribunals (). Rather, access to the courts is a principle of immense constitutional significance which provides various practical benefits to society.
Lord Reed first explained that the right of access to justice is inherent in the rule of law (). At the heart of this concept is a society governed by law. The primary role of Parliament is to make laws. The main purpose of democratic procedures is to ensure Members of Parliament are chosen by the public and accountable to them. The courts exist to ensure the law is applied and enforced. Therefore, without access to the courts, “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” ().
Furthermore, Lord Reed stressed that access to justice benefits society as a whole, rather than only the ‘users’ of ‘services’ provided by the courts. Firstly, everyday economic and social relations are underpinned by the knowledge that rights can be enforced, and remedies are available when obligations are not met (). Secondly, claims brought by individuals can serve to establish or clarify principles of general importance. Lord Reed gave the example of Donoghue v Stevenson  AC 562, which laid the foundations for the modern tort of negligence (). In fact, (at ):
the written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved…The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.
The Absence of Express Authorisation
It has already been established that there is a constitutional right of access to the courts which can only be curtailed by clear statutory enactment (Attorney General v Times Newspapers  AC 273, Raymond v Honey  1 AC 1, R v Secretary of State for the Home Department, Ex p Anderson  QB 778). The question, therefore, was whether the restrictions on access to justice, which followed from the Fees Order, had been clearly authorised by primary legislation ().
Lord Reed held that, as s. 42 of the 2007 Act contained ‘no words authorising the prevention of access to the relevant tribunals,’ the Fees Order was ultra vires and void ab initio (, ). Therefore, fees immediately ceased to be payable, and those who had paid were able to seek reimbursement.
Analysis: The Constitutional Implications of R (UNISON) v Lord Chancellor
At no point did the court in UNISON undermine the principle of parliamentary sovereignty. As Lord Reed explained, access to the courts ensures that the laws made by Parliament are applied and enforced (). Therefore, in this particular case, Lord Reed’s familiar technique of requiring explicit statutory authorisation to override a constitutional right sees the judiciary defending the sovereignty of Parliament, rather than threatening it.
The Threat of Primary Legislation
However, there is a risk of constitutional conflict if fees are reintroduced through primary legislation. As Mark Elliott has highlighted, there is precedent for such a move. R v Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants (‘JCWI’)  1 WLR 275 is a striking example of this. In JCWI, regulations were passed which removed the entitlement of certain asylum seekers to income-related and housing benefits. The Court of Appeal held the regulations were ultra vires the parent Act, as they rendered nugatory asylum seekers’ statutory rights, whilst also cutting down on their basic human rights. However, shortly after, Parliament enacted a piece of primary legislation containing similar provisions to those contained in the unlawful regulations.
It is uncertain how the Supreme Court would react to a similar move being made in respect of ET and EAT fees. For example, since JCWI there have been multiple judicial pronouncements suggesting that parliamentary sovereignty is conditional on compliance with the rule of law. Perhaps the most notable examples of this can be found in Jackson v Attorney General  UKHL 56. In that case, Lord Hope argued that “the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” (). Similarly, Lord Steyn considered that exceptional circumstances might arise which would require the Supreme Court to consider whether there are “constitutional fundamental[s] which even a sovereign Parliament…cannot abolish” (). The constitutional right of access to justice, which Lord Reed stressed is inherent in the rule of law, will likely be classed as such a fundamental. However, this would represent an unprecedented shift in the UK constitution, and it is unclear whether a Court would be willing to take this step.
In any case, the government’s current plans are to reintroduce tribunal fees. However, this time, the scheme will be “progressive and allo[w] people out of paying fees where they can’t afford them” (Richard Heaton, Ministry of Justice Permanent Secretary). Provided the scheme does not represent a ‘real risk’ of persons being effectively prevented from having access to justice (Lord Reed at ), the constitutional implications envisioned in Jackson can be avoided.
Implications for Cuts to Legal Aid?
In 2013, the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’) came into force. LASPO dramatically reduced the scope of civil legal aid and increased the eligibility threshold for those areas of civil law which remained within its remit. The result has been a drop from 574,000 civil legal aid cases in 2012 to 140,000 such cases in 2017/18. However, the demand for legal advice remains high. Since LASPO came into force, there has been a sharp rise in litigants-in-person (‘LIPs’) – individuals who represent themselves in the absence of a lawyer to act on their behalf.
Several restrictions on access to justice have followed. As Sir James Munby noted, LIPs are faced with court processes that are ‘“woefully inadequate to enable LIPs, even educated, highly articulate, intelligent LIPs, to actually understand the system…a shocking reproach on us, not them” (Financial Times). Secondly, cuts may be having a discriminatory impact on women’s access to justice. In addition to being paid less than men, women are more likely to have suffered domestic violence. This is particularly problematic in family law proceedings, where victims risk confronting their abusers in court. This bleak picture led the Law Society to conclude that people are now facing a “stark choice: to pay for their own legal advice, represent themselves, or be excluded from the justice system altogether” (Access Denied? LASPO 4 Years On (2017)).
Therefore, applying UNISON, it is arguable that there is a ‘real risk’ of the LASPO cuts effectively depriving individuals of access to justice. The rule of law certainly demands that those individuals now excluded from the scope of civil legal aid have the ability to enforce their rights. The difficulty, however, is that these changes to legal aid are enshrined in primary legislation. Should a challenge to LASPO be brought, the judiciary’s commitment to the rule of law, as reflected in cases like UNISON and Jackson, will be tested to its limits.
The importance of R (UNISON) v Lord Chancellor extends far beyond removing restrictions on access to justice for the users of employment tribunals. It is a timely reminder of the importance of the rule of law in an era where government agendas prioritise budget considerations over fundamental constitutional rights. The reach of UNISON, particularly where primary legislation and legal aid are concerned, is unclear. What is certain, however, is that, for the moment, UNISON represents a triumph for social justice and British constitutional values.