On 26 July 2017 the Supreme Court unanimously found the fees regime in relation to the Employment Tribunal system to be unlawful and quashed the 2013 Fees Order that had introduced the fees.
BWB has already advised on the employment law aspects of the judgment here. Now we want to turn to another significant aspect of one of the most important cases of the year, which is the Supreme Court’s consideration of the constitutional right of access to justice. The judgment includes an important analysis and application of the principles in this area, which could be particularly useful to those considering a challenge to analogous fee regimes or legal aid decisions.
Until July 2013 a claimant could bring proceedings in the Employment Tribunals (“ET”) and the Employment Appeal Tribunals (“EAT”) without paying any fee. However, the Lord Chancellor was empowered by statute to prescribe fees in relation to these tribunals and introduced fees by way of a Fees Order in July 2013. The trade union UNISON (with the Equality and Human Rights Commission and the Independent Workers Union of Great Britain acting as interveners) sought judicial review of the Fees Order.
The Supreme Court’s judgment
The Court found that the Fees Order was unlawful as a matter of domestic and EU law because it had the effect of preventing access to justice. It was also indirectly discriminatory under the Equality Act 2010 because the fees for certain claims particularly disadvantaged women.
The Supreme Court emphasised that the right of access to justice (including access to the courts and tribunals) was a core constitutional right and inherent in the rule of law. It stated that access to courts and tribunals plays a crucial role in ensuring that the laws created by Parliament and through the common law are applied and enforced, and access to the courts can only be curtailed by a clear statutory enactment. As a matter of statutory construction, the legislation empowering the Lord Chancellor to impose fees did not extend to a power to prevent access to courts and tribunals.
The test to be used in considering whether the fees effectively prevented access to justice was whether the fess could ‘reasonably be afforded’, with reference to the likely impact of the fees on behaviour in the real world. The Court considered a range of statistical evidence and reports that demonstrated that there had been a dramatic fall in the claims brought in the employment tribunals, as well as hypothetical examples that addressed the affordability of the fees and the application of the fee remission scheme rules. The Court found that the evidence supported a conclusion that a significant number of people who would otherwise have brought claims had found the fees to be unaffordable. It also found that the Fees Order had a particularly deterrent effect on bringing claims of low monetary value as (unlike in other systems such as the County Court) the fees were not linked to the value of the claim.
Therefore although the purposes of the Fees Order had been legitimate (which included making resources available for the justice system and deterring frivolous claims), it was not the least intrusive means of achieving those aims.
Although the Supreme Court’s judgment does not mean that it is inherently unlawful to impose court and tribunal fees, its reasoning will be of relevance to those seeking to challenge other fee regimes or schemes that affect access to justice, such as legal aid.
One particularly interesting aspect of the Supreme Court’s judgment is also its reliance on statistics, government reports, and hypothetical examples as the basis for its decision, rather than the facts of specific cases. This should be of particular interest for organisations that may consider challenging government decisions in the public interest, rather than on behalf of an individual claimant.
The Supreme Court’s judgment is available here.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of July 28, 2017.