For the many, not the few

Access to the courts is a constitutional right and employment tribunal fees unlawful: Caspar Glyn QC relays the inspirational Supreme Court decision in UNISON v Lord Chancellor

I told my mum at 18 that I was considering doing law. 

I wanted to find out what it was like. But my mum was great fun and so, of course, knew no lawyers. However, she did introduce me to an incredibly bad tempered stipendiary magistrate. He let me sit in his court. He told me to read Glanville Williams’ Learning the Law to inspire me. The passages in which Professor Williams expressed his view that the Bar wasn’t suitable for women with their ‘thin and reedy voices’ save, perhaps, for a provincial family practice (if they had a loyal following) had thankfully been edited out by the late eighties. However, it was still thin gruel. I had to fall back, for my inspiration, on Rumpole and Witness for the Prosecution.

One now need go no further than the unanimous Supreme Court decision in R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51 to provide the text to inspire the aspirant lawyer. The court declared that the government’s fees order, that charged claimants between £390 to £1,200 to pursue a case to hearing and a further £1,600 to appeal, was unlawful.

Writing the touch-paper

It is halfway through the judgment that Lord Reed writes the blue touch-paper. He pulls the Lord Chancellor, the current one and perhaps those back to Ken Clarke, onto his lap. He makes sure that they’re sitting comfortably but, before telling them the reasons for his judgment, solicitously offers to ensure that they understand its context. ‘It may be helpful,’ he says, in an avuncular tone, to explain briefly the role of the rule of law, the role of access to the courts in maintaining the rule of law. ‘It may be helpful,’ he repeats, to explain why decided claims provide a broader benefit beyond the individual litigants themselves.

I can’t do justice to the powerful prose of Lord Reed which follows. If you have not read the vindication of why we do what we do as barristers then read, please, paras 66 to 104 of the judgment – ranging from Magna Carta to Donoghue v Stevenson, it is a tour de force. Courts do not provide a public service like any other because it is the court’s role to make sure that democracy means something: that the laws that Parliament have enacted, are carried into effect. That is why there must be unimpeded access to the courts. Without it, democracy is dead.

The Supreme Court draws a line in the sand. Access to the courts is a constitutional right – a domestic constitutional right. The European right to effectiveness was infringed but absent that right the fees order would still have been declared unlawful because it had the effect of preventing the domestic right of access to justice.

The fees order: unlawful

So, to the decision. What of the stated aims of the fees order? First, to cover costs, secondly to deter the unmeritorious and thirdly to increase settlements. Only about 13% of the system is paid for by fees, as opposed to the anticipated one-third. The proportion of successful claims declined after fees were introduced and the Lord Chancellor accepted that there was no basis for concluding that only stronger claims were being litigated. Finally, probably as a result of respondents waiting to see if the claimant would pay to issue their claim, the proportion of cases settled through ACAS slightly decreased after the introduction of fees.

Then the court turns to the effect of the order. After the introduction of fees, claims fell by 66-70%. Lord Reed concluded that the fall was ‘so sharp, so substantial and so sustained’ that a significant number of people found the fees unaffordable. All the courts below had been unwilling to draw that conclusion – unless claimants were found and produced to show that they could not afford the fees. The Supreme Court took the view that if fees could not be reasonably afforded, save by sacrificing ordinary and reasonable expenditure for an acceptable standard of living, then the fees should not be regarded as affordable.

In terms of affordability, the Lord Chancellor suggested that all a family had to forego were clothing, personal goods and services, social and cultural participation and alcohol – the shirt off the worker’s back, if you will. If these sacrifices were made then the hypothetical families, used as examples in the case, could afford fees after between one and three-and-a-half months. The Supreme Court was clear – fees set at a level that required impositions on low to middle income households by sacrificing ordinary and reasonable expenditure for substantial periods of time were not lawful. This was particularly so with a system of remission that was systemically flawed.

The Wild West of employment rights

My fear and then my own experience over the past few years, as I warned again and again in whichever paper would publish my letters, was of a Wild West of employment rights. I believe that was the result of the fees order. It became obvious that the low-paid and non-paid would not pursue claims. My experience was that bad businesses did not fear not paying wages in full, did not pay full holiday pay and ignored other rights, safe in the knowledge that those rights were locked up behind an unaffordable paywall. In short my experience, and that of hundreds of my employment law colleagues, was that the rule of law, the rights which had been enacted, were not being enforced because of fees. The Supreme Court was right.

Lord Reed then dealt with UNISON’s submissions which were built on the research, statistical work and analysis of legal academic Jeremias Prassl and economist Abi Adams. Their research allowed them to pose, on firm evidence, a question that sounds as if it was written for Sybil Fawlty’s appearance on Mastermind – specialist subject, the bleeding obvious: If the median award is £500 (as it is for unlawful deduction of wages), only 50% of claims get paid in full and 34% of claims are never paid at all, then would you pay £390 to pursue such a claim? The rather more refined moniker of Prassl’s and Adams’ rational economic theory says ‘no’. The Supreme Court held that fees would render proceedings futile or irrational.

That mirrors my anecdotal experience and conversations with employment judges. Claims in which lawyers were instructed fell and lawyer’s practices suffered – yes they did. But the real victims, the injustice, was to the thousands upon thousands who used to issue their proceedings for minor claims without recourse to a lawyer. An employment judge would then patiently go through their claim with their employer – much more often than not both sides were unrepresented – the judge would then make a small award in favour of the claimant. This was employment justice at the coal face. Easy access to tribunals meant that employees knew that they could go to a tribunal easily, employers knew that they could do so. The risk of moral hazard was reduced. These were the vast majority of claims that disappeared at the stroke of a fees order.

Finally, the court unanimously held that the £1,200 fees had a disparate effect on those pursuing discrimination claims so as to be indirectly discriminatory as the Lord Chancellor was unable to show that they were justified – the 79% reduction in sex discrimination cases has stained our employment justice system since 2013.

Limits of Executive power

This decision will stand as setting out the constitutional right of access to the courts based on a clear analysis of the rule of law. The Supreme Court reminds the Executive of the limits of its power when dealing with the courts and access to them. The court may be supreme but it accepts that Parliament is sovereign: may still inhibit or remove access to the courts by clear primary legislation. The Executive may still use lawful delegated legislation with a non-deterrent fee scheme. For those who work the decision ends four years of industrial-scale injustice. It is a welcome, if not rude, return for bad bosses of the rule of law to the workplace.

Ending years of industrial-scale injustice

So, to the future, the Ministry of Justice (MoJ) has to repay between £28-32m in fees, plus interest, to those who paid them who may, in successful claimant cases, be the respondent where they have been ordered to repay the claimant their fees. If claimants can show that they did not issue claims as a result of fees then there will be applications to extend time on the basis of reasonable practicability or, in discrimination claims, where it is just and equitable.

However, to prevent a morass of such applications clogging up the system, and to give the Executive time to think, the President of Employment Tribunals has issued a stay on all claims relying on the decision. Will the independent judiciary be called upon to make decisions on satellite litigation caused by an unlawful policy? I like to think, with no evidence I should add, that this is President Brian Doyle giving the Executive time to reflect and do the right thing: let such claims that were not brought or struck out as a result of fees, go forward. In any event advisers should counsel clients disadvantaged by fees to issue and or to make applications.

The tribunals face a challenge of increased claims with decreased resources. Unless tribunals are given the resources to thaw the tens of part-time judges put in the deep freeze, delay will become endemic.

As lawyers we must jealously guard access to tribunals. That includes not allowing the myth that the system is a cheaters’ charter: we should ensure that tribunals use robust case management and, if necessary, costs awards against vexatious claimants. Targeted justice, not the sledgehammer that crushes all litigants and not merely the bad ones. I welcome the decision. Strong and stable employment rights for the many, not the few.

Contributor Caspar Glyn QC is a barrister at Cloisters

Author details: 
Caspar Glyn QC

Caspar, to his parents’ disapproval, left a career teaching skiing for the Bar in 1992. He took Silk in 2012, was Chairman of the Industrial Law Society 2013-2015 and practises in employment and sports’ law at Cloisters Chambers.