SCJs sing in Unison: Grayling’s high risk poker with the courts opens the tap on A2J jurisprudence

I thought it might be of interest to some of my readers to have a quick highlighting of the key points from R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent)  [2017] UKSC 51, although there will no doubt be many analyses, especially those praising this significant reversal for the Government. It was a unanimous decision. Lord Reed gave the judgment of the court.[1]

The case is about whether fees introduced for Employment Tribunal (ET) cases by the (then) coalition government were lawful. In contextualising the ET’s work Lord Reed observed they, “are designed to deal with issues which are often of modest financial value, or of no financial value at all, but are nonetheless of social importance. Their procedural rules, which include short limitation periods and generous rights of audience, reflect that intention. It is also reflected in the fact that, unlike claims in the ordinary courts, claims in ETs could until recently be presented without the payment of any fee.” From here on, for

From here on, for brevity of effort from me, I am paraphrasing and quoting from Lord Reed unless I indicate otherwise by (for example) square brackets.

The key points, I think, are:

  • In order for the rights conferred to be effective, and to achieve the social benefits which Parliament intended, they must be enforceable in practice.
  • The constitutional right of access to the courts is inherent in the rule of law. There is a constitutional right of access to justice traceable back to Magna Carta via Blackstone, Coke and evident in decisions on prisoners’ rights [an interesting example of how prison rights cases can shape the broader law].
  • Justice is not merely a public service like any other and the provision of adjudication is not of value only to the users themselves (and those who represent them). In particular, Lord Reed emphasises the value of precedent setting in court cases but also what law and society folk would call the Shadow of the Law argument: employment relations generally, and mediation of employment disputes more specifically, are shaped by the potential to access justice.

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. What I read from this is that the rule of law, and its limitation, must bear in mind any detriment to these positive externalities of access to justice for individuals. 

  • 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. Lord Reed seems to say those with arguable claims have a right to present them for adjudication [this is a significantly more generous test than a legal aid merits test or the test that would typically be passed by cases funded under typical CFAs or insurance].
  • Access to justice need not be free but it must be prompt and fair.
  • Impediments to the right of access to the courts can constitute a serious hindrance even if they do not make access completely impossible. If so, they will be unlawful unless plainly authorised by statute.
  • Even where a statutory power authorises an intrusion upon the right of access to the courts, it is interpreted as authorising only such a degree of intrusion as is reasonably necessary to fulfil the objective of the provision in question.
  • Even so, where such a policy provides for a degree of intrusion into a constitutional right greater than is justified by the objectives the policy is intended to serve, it fails.
  • Here the policy aims were as follows. Using fees to help to transfer some of the cost burden from general taxpayers to those that used the system, or caused the system to be used. And using a price mechanism to incentivise earlier settlements or to dis-incentivise unreasonable behaviour, such as pursuing weak or vexatious claims. These are legitimate aims that may lawfully restrict access to justice.
  • [It is notable that there was no evidence to suggest that the policy met either aims of discouraging vexatious cases or encouraging settlement and whilst it did raise some revenue in considering what level the fees should be set at there was no consideration by the then Lord Chancellor of what the optimal level of fees would be in terms of raising revenue – although Lord Reed is too polite to say it the policy was a bit of a shocker when considered against its stated aims].
  • In the absence of statutory words authorising a limitation of access to the relevant tribunals, the test was whether there was a real risk that access to justice would be prevented. Conclusive evidence is not required if real risk is demonstrated.
  • Ability to pay is not conclusive of legality. The question of 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.
  • Fees which would require low to middle-income households to sacrifice ordinary and reasonable expenditure for substantial periods of time (one to three months) are [by implication] too high.
  • 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 before the court, considered realistically and as a whole, led to the conclusion that that requirement was not met. The fall in the number of claims was 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. This was seen as particularly important in employment cases where applicants are practically compelled to take cases [what he means by this I found elusive on first reading].
  • 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. [Hence fees which impact on low-value cases or cases where relief is non-financial will need to be especially carefully justified and set low – raising interesting questions especially in judicial review and for the online court, I’d wager].
  • It has not been shown that less onerous fees, or a more generous system of remission, would have been any less effective in meeting the objective of transferring the cost burden to users. [This implies an obligation to set fees at a level which is based on a solid prediction of what is optimal in financial and access to justice terms].
  • A discretionary power to order the remission of fees in exceptional circumstance did not change that conclusion. The problems which have been identified in these proceedings were not confined to exceptional circumstances: they were systemic. [An interesting question is whether this is true in general or because the exceptional power was only operable in very limited circumstances, but logic seem to dictate, this would only be so if an exceptional power altered the systemic picture ].

This I think gets the guts of the decision (corrections and comments of course most welcome). Whilst the case is put on the basis of domestic law, there is also an interesting discussion of the impact of EU law, especially as regards employment rights deriving from EU law. Kniat v Poland, Application No 71731/01, judgment given 26 July 2005, “concerned fees payable in divorce proceedings. At the conclusion of the proceedings, the applicant was ordered to pay a court fee of 10,000 PLN. She was able to pay it, having received a share of the matrimonial property amounting to 300,000 PLN. Nonetheless, the imposition of the fee was held to violate Article 6(1), since the 300,000 PLN constituted apparently her only asset, and it did not seem reasonable to demand that she spend part of it on court fees, rather than build her future and secure her and her children’s basic needs after the divorce (para 44).”

Chris Grayling, should he be reading the judgment on his summer break, will be having a fit.

The judgment itself is, of course, well worth reading. There is a concise and highly readable summary of the evidence surrounding the nature of the fees charged and the impact on cases – which is shocking. The defence of the rule of law is neat, tidy and – forgivably on this occasion – court-(tribunal-)centric. The shadow argument is deftly done. But I thought, before concluding, I would pick out one hypothetical as an indicator of how the test (as was) would bite:

To put the figures discussed in the preceding paragraphs into perspective, the national minimum wage of £7.50 per hour produces an income of £1,300 per month, assuming a 40 hour week. That is before taking account of any benefits and tax credits (which, subject to specified exceptions, are included in the calculation of income under the remissions scheme). A couple each earning the national minimum wage would therefore have an income of £2,600 per month, before benefits and tax credits were taken into account. Such a couple would not normally qualify for any remission of fees for a type A claim, but might qualify for partial remission of the hearing fee for a type B claim.

If one were to put the judgment’s impact in its most general way, it will require the Ministry of Justice to think much more carefully about the impact of its proposals: the MoJ opined in a report “while there is clear evidence that ET fees  have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so” (p 6) They can no longer get away with putting the risks of their (rather feint and contrived) uncertainty about the problems so firmly back on others. They did so, no doubt, at the behest of their Minister, who – in taking such a high-risk line with what was already recognised to be a constitutional right – has opened the tap on an access to justice jurisprudence which is likely to be running for several years to come. And most of it domestic. And extending well beyond employment tribunals. Grayling’s legacy may be rather different from that which he imagined.

 

[1] Baroness Hale added a coda, which Lord Reed agreed with, on the discrimination points of the case – which did not in the end need deciding.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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2 Responses to SCJs sing in Unison: Grayling’s high risk poker with the courts opens the tap on A2J jurisprudence

  1. M farooq says:

    https://polldaddy.com/js/rating/rating.jsSimilarly fees charged in other Tribunals especially Immigration and Asylum need to be thought about carefully before government tries to re impose these.
    After all Tribunals are so called for a reason.
    We don’t have employment , Immigration or Tax courts in this country.

  2. Andrew says:

    The fees were set much too high but the principle of charging was and is right. The level needs to be thought out again – as does the preposterous scale of fees in the civil courts.

    But there is an elephant in the room and that is the no-adverse-costs regime which turns the Employment Tribunals into an instrument of legalised extortion, especially in discrimination cases. The compensation is at large and the law is complex; an employer cannot do without lawyers and can be ruined even if the case is dismissed.

    Costs should follow the event and claimants should be required to have insurance to cover the risk.

    And there should be a Calderbank system with no discretion in the hands of the Tribunal. You blurt out the offer, the hearing stops, you pay the costs thrown away before it can be heard again.

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