R (Unison) v Lord Chancellor

Facts

The Lord Chancellor, acting under section 42 of the Tribunals, Courts and Enforcement Act 2007, made the Fees Order 2013, which required claimants to pay an issue fee and a hearing fee to bring claims in the employment tribunals and the Employment Appeal Tribunal. The fees were set at levels that were substantial for many claimants, and the number of claims fell sharply after the Order came into force. The trade union Unison challenged the Order by judicial review.

History

The challenges by Unison to the lawfulness of the Fees Order were dismissed by the Divisional Court and by the Court of Appeal in earlier proceedings. The Supreme Court heard the matter on appeal and allowed it.

Issue

Whether the power in section 42 of the 2007 Act allowed the Lord Chancellor to set fees at a level that prevented or deterred access to employment tribunals, and whether the Order was lawful under the common law right of access to justice, European Union law and the Equality Act 2010.

Held

Appeal allowed and the Fees Order quashed. The Order was unlawful because it imposed fees that in practice prevented access to justice, and it was also indirectly discriminatory contrary to the Equality Act 2010.

Ratio

• The right of access to the courts is a constitutional right inherent in the rule of law, and a general power to make fees cannot be read as authorising fees that effectively prevent the exercise of that right, unless Parliament has authorised it in clear words.
• The test is whether there is a real risk that persons will effectively be prevented from having access to justice; fees which are unaffordable, or which make it futile or irrational to bring a claim, interfere with the right, and the Order did so.

The judgments

Key reasoning

• The court explained that the rule of law depends on the courts being accessible, since laws would be a dead letter if people could not enforce them, and it relied on earlier authority such as R v Lord Chancellor, ex parte Witham [1998] QB 575 on fees which obstruct access.
• The principle of legality means that general statutory words are not read as authorising the infringement of fundamental rights, so that the power to set fees had to be read as subject to the right of access to justice.
• The evidence of the collapse in the number of claims showed that the fees had in practice put the right out of reach for many, and the justification of the Order, encouraging settlement and transferring costs to users, did not outweigh that effect.

Obiter

• The court observed that the courts are not simply a public service for the benefit of those who use them, but that they provide a wider benefit to society by upholding the law and helping to enforce legal rights and obligations.

Where it fits in the module

In the Constitution course the case is used to explore the principle of legality, common law constitutional rights and the question whether some statutes or rights have special constitutional status. It shows the common law constitution doing the work of limiting the executive power of an ordinary statutory delegation without any reference to the Human Rights Act 1998.

Criticisms

• The test of a real risk of effectively preventing access is vague, and it was resolved on statistical evidence of falling claim numbers, which leaves unclear what level of fees would be lawful.
• Grounding the decision in a common law right of access to justice raises the question of judicial power, since the court gave strong weight to a constitutional principle to limit a policy choice made under statutory authority.
• The court did not fully explain the relationship between the common law right and the rights under the European Convention and European Union law, which makes the status of the common law right unclear as a freestanding constraint.