Kerry Underwood

SUPREME COURT: FRIENDS OF THE PEOPLE: UNISON CONSIDERED

with 4 comments


In the case of R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51

a seven member Supreme Court unanimously allowed UNISON’s appeal and quashed the Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013.

Thus Employment Tribunal and Employment Appeal Tribunal fees are scrapped and, in accordance with its previous undertaking, the government must return all fees paid, estimated to be around £30 million.

That will be a windfall for losing employers, who generally will have been ordered to pay the winning Claimant’s fee, as well as a refund for unsuccessful Claimants.

An unresolved issue is whether Employment Tribunals will now allow original Employment Tribunal applications years out of time on the basis that the unlawful fee prevented the employee from making a claim.

Here the Supreme Court had three main options:

  1. to do nothing and allow the fees to stand;

 

  1. to quash the order on fairly narrow grounds, such as discrimination or failure of equivalency under European Union law; or

 

  1. to re-state and re-affirm that access to the courst to enforce the laws passed by Parliament is an inherent constitutional right not capable of being prevented, even by Parliament itself.

The Supreme Court clearly and bravely went for option 3.

This decision relies on domestic law primarily, as well as European law, and thus its effect and importance will continue after the exit of the United Kingdom from the European Union.

The Senior Judiciary have been less than impressed by the idea that the European Union is the fount of rights in this country and that outside the European Union the courts would be unable to enforce individual rights.

The rights of access to the courts existed before entry into the Common Market and will exist afterwards, just as human rights existed before the Human Rights Act.

“Before this court, it has been recognised that the right of access to justice is not an idea recently imported from the continent of Europe, but has long been deeply embedded in our constitutional law. The case has therefore been argued primarily on the basis of the common law right of access to justice…”

This decision is also of potential relevance to fees in the ordinary courts.

If those fees are so high, or so structured, that they severely limit access to justice, then they will be quashed.

However the most significant aspect of this historic judgment of great constitutional importance is its tone and its restatement of some of the basic rights of citizens of the United Kingdom, put more eloquently and powerfully than in all of the Acts and treaties etc.

At paragraph 29 the Supreme Court makes the point that going to court is not just for winners, and that losing claims are not necessarily unmeritorious:

“29. 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.”

We used to call that  “Having your day in court.”

Enforcement

The Supreme Court also pointed out that successful Claimants often lose out as only 53% of successful Claimants received any part of the award before taking enforcement action, which action itself is subject to a further court fee of £44.00.

Even after enforcement 35% received no money at all, 16% received payment in part and only 49% received payment in full.

Although the Supreme Court made no further comment, that demonstrates the woeful inadequacy of the County Court Enforcement Procedure, something known to every litigation lawyer in the land.

Impact assessment

The impact assessment had estimated that 77% of applicants would receive full or partial fee remission.

In fact the figure is 29% and as the Supreme Court pointed out, the true figure is “even lower, compared with what had been anticipated, given the difference between the number of Claimants before and after the introduction of fees.” (Paragraph 43)

The point here is that obviously people who do not qualify for fee remission are more likely to be deterred from bringing claims, so those who do bring claims have a much higher percentage of fee remission qualifiers, making the statistics largely meaningless.

Thus, for example, if the fee was £1 million and only one person qualified for fee remission and only one person brought a claim, then 100% of all applicants qualified for fee remission and therefore the fee of £1 million has not deterred anyone from bringing a claim.

Virtually every assumption made in the impact assessment, including those about the drop in the number of claims, the percentage settlement through ACAS, and the weeding out of meritorious claims was hopelessly wrong.

Impact assessments are a pointless and misleading waste of money and should be scrapped (My comment, not the Supreme Court’s comment).

Children without clothes

The Lord Chancellor of the United Kingdom, in 2017, submitted to the Supreme Court that people could afford Employment Tribunal fees by, for example, not buying clothes for their children.

The Supreme Court said:

“One problem with the Lord Chancellor’s approach to these calculations is that some of the expenditure which he excludes, such as spending on clothing, may not in fact be saved, but is simply postponed. For example, if the children need new clothes because they have outgrown their old ones, replacements have to be purchased sooner or later. The impact of the fees on the family’s ability to enjoy acceptable living standards is not avoided merely by postponing necessary expenditure.”

The constitutional right of access to the courts

This is the most important part of the judgment and defines it as a major constitutional document.

At the end of this blog I set out in full paragraphs 66 to 75 of this judgment.

This passage has already been described as poetic and beautifully written and I endorse those sentiments.

Key phrases and quotes

The constitutional right of access to the courts is inherent in the rule of law.

The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other.

… the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable.

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.

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.

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.

… it is not always desirable that claims should be settled: [Because authoritative rulings are sometimes required on matters of general importance].

… although it is often desirable that claims… should be resolved by negotiation or mediation, those procedures can only work fairly and properly if they are backed up by the knowledge on both sides that a fair and just system of adjudication will be available if they fail. Otherwise, the party in the stronger bargaining position will always prevail.

In English law, the right of access to the courts has long been recognised. The central idea is expressed in chapter 40 of the Magna Carta of 1215 (“Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam”), which remains on the statute book in the closing words of chapter 29 of the version issued by Edward I in 1297:

“We will sell to no man, we will not deny or defer to any man either Justice or Right.”

Those words are not a prohibition on the charging of court fees, but they are a guarantee of access to courts which administer justice promptly and fairly.

Significantly the Supreme Court held here that even an act of Parliament, as compared with the secondary legislation bringing in Employment Tribunal fees, can effectively be struck down by the court    “… 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 decree of intrusion must not be greater than is justified by the objectives for which the measure is intended to serve” (Paragraph 88).

The Supreme Court rejected the Divisional Courts view that specific evidence from specific people was required:

“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. In the first place, as the Review Report concludes, “it is clear that there has been a sharp, substantial and sustained fall in the volume of case receipts as a result of the introduction of fees”. While the Review Report fairly states that there is no conclusive evidence that the fees have prevented people from bringing claims, the court does not require conclusive evidence: as the Hillingdon case indicates, it is sufficient in this context if a real risk is demonstrated. The fall in the number of claims has in any event been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.”

In a damning indictment of the reasoning of the Divisional Court the Supreme Court had this to say:

“The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. 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.”

The Supreme Court rejected the idea that individuals could, and should, sacrifice acceptable living standards in order to pay court fees and had this to say:

“The Lord Chancellor argues that, if the households sacrifice all spending on clothing, personal goods and services, social and cultural participation, and alcohol, the necessary savings can be made to enable the fees to be paid. As was explained earlier, the time required to make the necessary savings varies, in the examples, between about one month and three and a half months. Leaving aside the other difficulties with the Lord Chancellor’s argument discussed earlier, the fundamental problem is the assumption that the right of access to courts and tribunals can lawfully be made subject to impositions which low to middle income households can only meet by sacrificing ordinary and reasonable expenditure for substantial periods of time.”

The Supreme Court also held that the effect of the fees imposed limitations on the exercise of EU rights which are disproportionate, and therefore the Fees Order is also unlawful under European Union law.

The Supreme Court also made it clear that this case was not about an administrative decision challenged on the basis that relevant considerations were not taken into account, or on the basis that the decision to introduce fees was unreasonable. Rather it said:

“The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice.” (Paragraph 119).

The Supreme Court also held that the Fees Order is indirectly discriminatory under the Equality Act 2010 because the higher fees for type B claims put women at a particular disadvantage, because a higher proportion of women bring type B than bring type A claims.

Summary

A momentous, dramatic, powerful and brave decision by the Supreme Court.

In contrast to virtually all other commentators, I expected nothing less – see my previous writings on this subject.

The Supreme Court is one of our greatest institutions and its first two presidents, Lord Phillips and Lord Neuberger amongst our greatest citizens.

The Judges of the Supreme Court are indeed the Friends of the People.

 

 

Here are the key paragraphs relating to the constitutional rights of citizens of the United Kingdom.

“66. The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include 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. The extent to which that viewpoint has gained currency in recent times is apparent from the consultation papers and reports discussed earlier. It is epitomised in the assumption that the consumption of ET and EAT services without full cost recovery results in a loss to society, since “ET and EAT use does not lead to gains to society that exceed the sum of the gains to consumers and producers of these services”.

  1. It may be helpful to begin by explaining briefly the importance of the rule of law, and the role of access to the courts in maintaining the rule of law. It may also be helpful to explain why the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable.

 

  1. 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.

 

  1. Access to the courts is not, therefore, of value only to the particular individuals involved. That is most obviously true of cases which establish principles of general importance. 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. The same is true of cases before ETs. For example, the case of Dumfries and Galloway Council v North [2013] UKSC 45[2013] ICR 993, concerned with the comparability for equal pay purposes of classroom assistants and nursery nurses with male manual workers such as road workers and refuse collectors, had implications well beyond the particular claimants and the respondent local authority. The case also illustrates the fact that it is not always desirable that claims should be settled: it resolved a point of genuine uncertainty as to the interpretation of the legislation governing equal pay, which was of general importance, and on which an authoritative ruling was required.

 

  1. Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established. Their cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless. 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, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.

 

  1. But the value to society of the right of access to the courts is not confined to cases in which the courts decide questions of general importance. 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. That is so, notwithstanding that judicial enforcement of the law is not usually necessary, and notwithstanding that the resolution of disputes by other methods is often desirable.

 

  1. 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 ET. 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. Equally, although it is often desirable that claims arising out of alleged breaches of employment rights should be resolved by negotiation or mediation, those procedures can only work fairly and properly if they are backed up by the knowledge on both sides that a fair and just system of adjudication will be available if they fail. Otherwise, the party in the stronger bargaining position will always prevail. It is thus the claims which are brought before an ET which enable legislation to have the deterrent and other effects which Parliament intended, provide authoritative guidance as to its meaning and application, and underpin alternative methods of dispute resolution.

 

  1. A Lord Chancellor of a previous generation put the point in a nutshell, in a letter to the Treasury:

“(i)      Justice in this country is something in which all the Queen’s subjects have an interest, whether it be criminal or civil.

 

(ii)       The courts are for the benefit of all, whether the individual resorts to them or not.

 

(iii)     In the case of the civil courts the citizen benefits from the interpretation of the law by the Judges and from the resolution of disputes, whether between the state and the individual or between individuals.”

(Genn, Judging Civil Justice (2010), p 46, quoting a letter written by Lord Gardiner in 1965)

  1. In English law, the right of access to the courts has long been recognised. The central idea is expressed in chapter 40 of the Magna Carta of 1215 (“Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam”), which remains on the statute book in the closing words of chapter 29 of the version issued by Edward I in 1297:

“We will sell to no man, we will not deny or defer to any man either Justice or Right.”

Those words are not a prohibition on the charging of court fees, but they are a guarantee of access to courts which administer justice promptly and fairly.

  1. The significance of that guarantee was emphasised by Sir Edward Coke in Part 2 of his Institutes of the Laws of England(written in the 1620s, but published posthumously in 1642). Citing chapter 29 of the 1297 charter, he commented:

“And therefore, every Subject of this Realme, for injury done to him in bonis, terris, vel persona [in goods, in lands, or in person], by any other Subject … may take his remedy by the course of the Law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay. Hereby it appeareth, that Justice must have three qualities, it must be Libera, quia nihil iniquius venali Justitia; Plena, quia Justitia non debet claudicare; & Celeris, quia dilatio est quaedam negatio [Free, because nothing is more iniquitous than saleable justice; full, because justice ought not to limp; and speedy, because delay is in effect a denial]; and then it is both Justice and Right.” (1809 ed, pp 55-56)

More than a century later, Blackstone cited Coke in his Commentaries on the Laws of England (1765-1769), and stated:

“A … right of every [man] is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein.” (Book I, Chapter 1, “Absolute Rights of Individuals”).

 

Also see:

A Christmas Carol by the High Court

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Written by kerryunderwood

July 27, 2017 at 9:54 am

Posted in Uncategorized

4 Responses

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  1. This judgement is manna to my ears. If only the principles reiterated could be applied to the benefit of those who wish to apply for judicial review of Ombudsmen decisions, but are deterred by the fact that the process, and cost, is so heavily stacked against the individual.

    Jan

    July 27, 2017 at 11:09 am

    • I agree. I see this as the beginning, not the end, of the judiciary reclaiming the courts and the judicial process for the people.

      Kerry

      kerryunderwood

      July 27, 2017 at 1:48 pm

  2. The idea that someone should do without basic essentials to pay for access to justice is morally repugnant.

    Chris Winter

    July 29, 2017 at 4:18 pm

    • I agree- and happily so does the Supreme Court. The Divisional Court’s decision in this case was on of the darkest days in 1,000 years of courts- and the Supreme Court more or less said so – see my blog A Christmas Carol by the High Court.

      Kerry

      kerryunderwood

      July 29, 2017 at 4:23 pm


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