R (UNISON) v Lord Chancellor

The Supreme Court held that the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) was unlawful. The fees regime, including the levels of issue and hearing fees, and the narrow remission scheme (Schedule 3 as substituted by SI 2013/2302), interfered with the constitutional right of access to justice and, insofar as it affected rights derived from EU law, breached the EU principle of effectiveness and the right to an effective remedy (Article 47 of the Charter). The court concluded that the fees in practice prevented access to justice for a significant number of potential claimants, and in many cases rendered claims for modest or non-monetary remedies futile or irrational.

Key legal principles: (i) the constitutional right of access to the courts is fundamental and may be curtailed only by clear statutory words or to the minimum degree necessary for legitimate objectives; (ii) subordinate legislation must not cut down specific statutory rights conferred by Parliament; (iii) under EU law procedural rules must not render rights conferred by EU law practically impossible or excessively difficult to exercise and must be proportionate.

The court applied those principles to the Fees Order and found that (a) the sharp and sustained fall in tribunal receipts after fees were introduced, supported by Ministry of Justice statistics and the Review Report, evidenced a real risk that persons were prevented from accessing tribunals; (b) many claims are for modest awards or for non-monetary relief, so the fixed fee structure and levels were disproportionate; (c) the remission scheme and discretionary exceptional-remission power were insufficient to prevent systemic exclusion; and (d) the Lord Chancellor had not demonstrated that less intrusive alternatives (lower fees or a broader remission scheme) would have failed to meet legitimate aims such as cost recovery or deterrence of unmeritorious claims. As a result the Fees Order was quashed.

Background and parties:

• UNISON challenged the lawfulness of fees introduced for Employment Tribunals (ETs) and the Employment Appeal Tribunal (EAT) by the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) (the Fees Order). The Lord Chancellor made the Fees Order under section 42 of the Tribunals, Courts and Enforcement Act 2007. Interveners included the Equality and Human Rights Commission and the Independent Workers Union of Great Britain.

Nature of the claim and relief sought:

• Judicial review seeking quashing of the Fees Order on grounds that: (i) the fees unlawfully interfered with the common law constitutional right of access to justice; (ii) they breached EU law principles (effectiveness/effective judicial protection/Article 47 of the Charter); (iii) they frustrated statutory rights; and (iv) they were indirectly discriminatory (addressed by Lady Hale).

Procedural history:

• Two initial judicial review claims in the Divisional Court were dismissed ([2014] EWHC 218 (Admin); [2014] EWHC 4198 (Admin)). The Court of Appeal dismissed UNISON’s appeal [2015] EWCA Civ 935. The matter was allowed to proceed to the Supreme Court which heard the appeal and considered fresh statistical and review evidence not available to the lower courts.

Issues framed by the court:

1. Whether the Fees Order was ultra vires under domestic law because it impermissibly interfered with the constitutional right of access to the courts and cut down statutory rights.
2. Whether the Fees Order was unlawful under EU law (principle of effectiveness and effective judicial protection / proportionality under Article 47 of the Charter).
3. Whether the fees regime was indirectly discriminatory.

Court’s reasoning (concise):

• The court explained the central constitutional importance of access to courts as part of the rule of law and surveyed authorities showing that impediments to access require clear statutory authorisation and must be no greater than reasonably necessary (cases such as Raymond v Honey; Ex p Leech; Daly; Ex p Witham; Hillingdon cited).
• The Fees Order prescribed significant fixed fees (type A and type B splits; issue and hearing fees) which had no direct relation to the sums claimed and penalised complexity; remission was limited by a disposable capital and income test; discretionary remissions were confined to "exceptional circumstances".
• Empirical evidence and the Ministry of Justice Review demonstrated a dramatic and sustained fall (c.66-70%) in ET claims after fees were introduced, a disproportionate fall in lower-value and non-monetary claims, and a much lower remission take-up than predicted. Surveys (Acas) and hypothetical household examples showed that the fees were not reasonably affordable in the real world for many low-to-middle income households and could not lawfully be required to be met by sacrificing ordinary and reasonable expenditure.
• Fees also rendered many small-value or non-monetary claims futile because the likely awards and low rates of enforcement meant recovery of fees was uncertain; consequently, the fees frustrated statutory rights and undermined the enforcement and deterrent effects Parliament intended.
• Under EU law proportionality was not determined solely by ability to pay; the stage at which fees were required, their relation to the sums claimed, and practical effects on access were all relevant. The Fees Order imposed disproportionate limitations on EU-derived rights.

Relief and consequences: The Fees Order was unlawful ab initio and therefore quashed. The court invited submissions on consequential relief.

Appeal allowed. The Supreme Court held that the Fees Order was unlawful and must be quashed because it had the effect of preventing access to justice: the fees and narrow remission scheme were disproportionate to legitimate aims, frustrated statutory rights and, insofar as EU-derived rights were concerned, breached the principle of effectiveness and the right to an effective remedy. The unlawfulness existed from the time the Order was made (unlawful ab initio).

First judicial review dismissed by Divisional Court: [2014] EWHC 218 (Admin); second judicial review dismissed: [2014] EWHC 4198 (Admin); Court of Appeal dismissed the appeals: [2015] EWCA Civ 935; appeal to the Supreme Court allowed: [2017] UKSC 51.