Tribunal fees are discriminatory and obstruct access to justice

The UK Supreme Court yesterday issued its long-awaited ruling on the legal challenge to the Coalition Government’s introduction of fees for taking an appeal to the employment tribunal. The appeal arose out of judicial review proceedings issued by the trade union UNISON and supported by the Equality and Human Rights Commission.

In a landmark ruling, the Court found that the Fees Order (which brought in the fees regime by the Lord Chancellor using statutory orders in 2013) is unlawful because it has the effect of preventing access to justice. The Court also found that the Fees Order is indirectly discriminatory under the Equality Act 2010 because the higher fees for what are known as Type B claims (including claims of discrimination) put women at a particular disadvantage, because a higher proportion of women bring type B than bring type A claims.

The ruling includes important principles relating to administrative justice:

‘The constitutional right of access to the courts is inherent in the rule of law: it is needed to ensure that the laws created by Parliament and the courts are applied and enforced. Tribunals are more than merely the providers of a service which is only of value to those who bring claims before them.’

At para 68 of the judgment, the Court sets out in unambiguous language what accountability relationships exist in government to protect individuals and the rule of law and what the purpose is of courts and a justice system. It is worth quoting in full:

‘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.’

And in para 72:

‘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.’

The ruling also illustrates the value of empirical evidence when testing the impact of government policy.

See also analyses of the judgment by Joe Tomlinson and by Mark Elliott with insights into implications for administrative justice.