Unison in the Supreme Court: Tribunal Fees, Constitutional Rights and the Rule of Law

The Unison case is an important victory for workers who wish to enforce their rights in Employment Tribunals. But the Supreme Court’s judgment also implicates some key principles of UK constitutional law — and raises a question about how far courts can go in upholding such principles.

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The UK Supreme Court’s judgment in R (Unison) v Lord Chancellor [2017] UKSC 51, delivered on 26 July 2017, is a landmark decision concerning the constitutional right of access to justice and the rule of law more generally. The legal issue at stake was relatively simple. Section 42 of the Tribunals, Courts and Enforcement Act 2007 innocuously provides that “[t]he Lord Chancellor may by order prescribe fees payable in respect of” various tribunals, including the Employment Tribunal and the Employment Appeal Tribunal. In 2013, Chris Grayling, the then Lord Chancellor and Secretary of State for Justice, relying upon that power, made the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (the “Fees Order”). Its effect was to require most people who wished to make use of the Employment Tribunals to pay fees; previously, no such fees had been payable.

The principal issue for the Supreme Court was whether the Fees Order was lawful, the answer to which question turned upon whether the Act had, in the first place, authorised the making of the Order. It was argued on a number of grounds that it had not. The central argument, however, was that the Fees Order impeded access to justice, and that the Lord Chancellor’s order-making power, granted by section 42 of the Act, did not extend to impeding such access. At the heart of the case, therefore, was a question of statutory construction. However, in circumstances such as these, the approach to be taken to statutory construction is shot through with fundamental constitutional principles, as the Supreme Court made plain in a powerful, unanimous judgment delivered by Lord Reed.

The practical effect of the Fees Order

From what I have said so far, it should be evident that the Court had to grapple with two interlocking issues: namely, the effect of the Fees Order, and whether the making of an Order with that effect was authorised by the Act. The case thus called for both empirical and legal analysis. I will not dwell here on the former, save to point out that the Supreme Court notably did. Indeed, it is striking that the Court was prepared to engage in detailed consideration of relevant statistical and financial information, so as to build up a comprehensive picture of the real-world impact of the Fees Order.

Among the things that the Court took account of were “a dramatic and persistent fall in the number of claims” brought in Employment Tribunals following the introduction of fees, and a singularly ungenerous regime for reducing or waiving fees for those least able to pay. The Court, for instance, looked in some detail at the assumptions concerning necessary family expenditure that had underpinned the income levels at which the Lord Chancellor deemed people capable of affording the fees. The Court observed that those assumptions presupposed that people should be expected to “sacrifice ordinary and reasonable expenditure” so as to be able to afford to take a claim to the Tribunal. That, said Lord Reed, raised a “fundamental question” about “whether the sacrifice” of such expenditure “can properly be the price of access to one’s rights”.

The Court thus concluded that the charging regime set out in the Fees Order did have the effect of impeding access to justice, and that it could not be “deflected from that conclusion by the existence of the Lord Chancellor’s discretionary power of remission”, given that the “statutory scheme of remission is of very restricted scope”. That the Fees Order had this effect was a crucial step in the Court’s analysis. But it is was only one such step. The question remained whether the Lord Chancellor had been authorised by the Act to make a Fees Order with such an effect.

The rule of law

As noted earlier, whether the Order was so authorised turned upon the interpretation of section 42 of the Tribunals, Courts and Enforcement Act 2007. But the Court made clear that the approach to be taken to this question of statutory construction was heavily influenced by the constitutional requirements of the rule of law, the assumption being that — absent very clear statutory language to the contrary — Parliament would be taken not to have authorised fees that would be incompatible with the rule of law and, in particular, with that component of it that requires access to justice.

The relevant part of the Court’s judgment reads as a primer — albeit a very powerful one — on what the rule of law means in this regard. Indeed, it is difficult to escape the conclusion that the Court felt it necessary to drive home some very fundamental propositions — ones that should not really need to be driven home — because the Government’s position indicated ignorance of or contempt for them. The Court thus noted numerous “[i]ndications of a lack of understanding” of the importance of the rule of law, including:

  • “the assumption that the administration of justice is merely a public service like any other”;
  • “that courts and tribunals are providers of services to the ‘users’ who appear before them”; and
  • “that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings”.

These misapprehensions, said the Court, were evident from, among other things, Government consultation papers that had preceded the making of the Fees Order. Having noted that, the Court set about the task of establishing the demonstrable wrong-headedness of those assumptions. It began with the elementary — and elemental — proposition that: “At the heart of the concept of the rule of law is the idea that society is governed by law.” This required that Parliament “make laws for society in this country”, and that there are “[d]emocratic procedures … 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”. But this was not enough on its own. The rule of law also required the existence courts that can “ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced”.

Having established these basic propositions, the Court turned to the particular question of access to justice. It observed that in order for courts to fulfil their essential constitutional role in an effective and meaningful way, “people must in principle have unimpeded access to them”. In other words, the mere existence of independent courts is necessary if the rule of law is to be upheld, but it is not sufficient; people must also have meaningful access to those courts. Thus, in a particularly pointed passage, the Court said:

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.

It followed that “courts do not merely provide a public service like any other”, and that “[a]ccess to the courts is not, therefore, of value only to the particular individuals involved”. Individuals who bring claims may well establish or clarify critical legal points that will benefit and affect countless others:

When, for example, Mrs Donoghue won her appeal to the House of Lords (Donoghue v Stevenson [1932] AC 562), the decision established that producers of consumer goods are under a duty to take care for the health and safety of the consumers of those goods: one of the most important developments in the law of this country in the 20th century. To say that it was of no value to anyone other than Mrs Donoghue and the lawyers and judges involved in the case would be absurd.

And in the employment context, noted the Court:

When Parliament passes laws creating employment rights, for example, it does so not merely in order to confer benefits on individual employees, but because it has decided that it is in the public interest that those rights should be given effect. It does not envisage that every case of a breach of those rights will result in a claim before an [Employment Tribunal]. But the possibility of claims being brought by employees whose rights are infringed must exist, if employment relationships are to be based on respect for those rights.

Constitutional rights and the limits of the judicial role

The Court was clear, then, that the Fees Order impeded access to justice, and that access to justice is a critical component of the rule of law. In some constitutional systems, that would be that: it would follow ineluctably that administrative orders incompatible with the right of access to justice would be unlawful — because the constitution would withhold the authority to legislate in breach of such a fundamental right. But the UK’s constitutional order is unlike most others. In particular, the UK Parliament, being sovereign, is (at least in orthodox theory) free to do as it wishes. The question is not therefore whether the UK Parliament was capable of authorising the Lord Chancellor to create a fees regime that impeded access to justice, but whether it was to be taken to have chosen to do so.

It is at this point that the process of statutory construction becomes crucial, informed, as it was in this case, by the application of the principle of legality. The governing principles, said the Court, are that an “impediment or hindrance” to the exercise of the right will be lawful only if “clearly authorised by primary legislation”. Applying these principles, the Court concluded that the Order would be “ultra vires if there is a real risk that persons will effectively be prevented from having access to justice” because “section 42 of the 2007 Act contains no words authorising the prevention of access to the relevant tribunals”. The Fees Order thus impeded access to justice in a way that was not contemplated by the Act, and was therefore “unlawful ab initio“.

The process of statutory construction, harnessing the principle of legality as a means of securing fundamental constitutional rights, thus operated very powerfully in the Unison case so as to deny the Government the legal power to impose the fees regime contained in the 2013 Order. But for all that the case represents a striking and robust reaffirmation of fundamental constitutional principles, it also hints at — or least raises questions about — the limits of those principles. Unison is important because it reminds us that access to justice is an axiomatic component of the rule of law, and that the courts are constitutionally able and willing to confer strong protection upon the rule of law through the interpretive process. But if that is the furthest the courts can go, then Unison serves to identify not only what can be done in this sphere, but also what cannot.

What, for instance, would happen if the 2013 Order was re-enacted as an Act of Parliament? Presumably the Order would be construed as narrowly as possible, and the power to dispense with fees in exceptional circumstances interpreted as broadly as possible. But there would be limits upon how far the courts could go, unless they were willing to take the nuclear option of telling Parliament that it had overstepped the line — a line whose judicial articulation would entail a repudiation of the principle of parliamentary sovereignty itself. One answer to this question is that we will cross this bridge if we ever come to it, while fervently hoping that we never do. That, after all, is the British way in respect of many matters constitutional. And the likelihood of having to cross the bridge may itself be reduced by the powerful nature of the Court’s judgment: one might, for instance, hope that it makes the case for respecting the rule of law, and the principle of access to justice in particular, in a way that would cause legislators to think twice.

This cannot, however, be taken for granted. Indeed, it puts me in mind of R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, in which administrative regulations imposing draconian restrictions upon welfare support for asylum-seekers were struck down. In his judgment, Simon Brown LJ said that the regulations contemplated for some asylum-seekers “a life so destitute that to my mind no civilised nation can tolerate it” — “a sorry state of affairs” that could be achieved by “primary legislation alone”. Not long after that judgment, Parliament went ahead and enacted the Nationality, Immigration and Asylum Act 2002, section 55 of which had a good deal in common with (albeit that it was not identical to) the regulations that had been quashed in the JCWI case.

Of course, Parliament’s latitude is limited by EU law where relevant, and in Unison the Supreme Court held that the Fees Order was unlawful not only as a matter of domestic law but also as a matter of EU law. Parliament is not necessarily wholly incapable, as a matter of domestic constitutional law, of overriding EU law (e.g. through the use of express language: Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)), but taking such a step is far from straightforward given the liability implications of doing so at an EU level. In this sense, the protections offered by EU law, insofar as they are relevant, offer at least a form of guarantee of rights — even in the face of parliamentary sovereignty. But that guarantee is now approaching its expiry date, thanks to the UK’s impending departure from the EU, and its extrication from the constraining forces of EU law and the EU judicature. This, in turn, places renewed focus upon the capacity of domestic constitutional law to safeguard fundamental rights and rule-of-law values. Viewed in that light, the Supreme Court’s decision in Unison is certainly a powerful restatement of what the rule of law requires in this context — and of the courts’ preparedness to go as far as they constitutionally can in upholding it. But it also raises a tantalising question about just how far that might be.