In the case of R(UNISON) v Lord Chancellor,1 the Supreme Court ruled that the Lord Chancellor’s Fee Orders for the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) were unlawful because they limited access to justice. This article will first set out the background facts and context behind the appeal. Then, it will highlight the shift in focus away from EU law to the common law in the Supreme Court judgment (“Judgment”). Finally, it will analyse the Judgment and discuss the common law’s potential to protect basic rights.
Section 42(1) of the Tribunals, Courts and Enforcement Act 2007 (‘2007 Act’) provides that the Lord Chancellor ‘may by order prescribe fees payable in respect of anything dealt with by the First-tier and Upper Tribunals or by an added tribunal.’2 An “added tribunal” is defined by Section 42(3) as a tribunal specified in an order made by the Lord Chancellor.3 In 2013, through an order, the ET and EAT were included as added tribunals.
In July 2013, the Lord Chancellor introduced the Fee Order to make provisions for fees to be payable in respect of any claim presented to the ET and EAT. Before the Fee Order was made, access to the ETs, unlike claims in the ordinary courts, could be presented for free. The amount payable varied depending on the type of claim presented and whether it was brought by a single claimant or a group. The two types of claims are split up into “type A” and “type B” respectively. Type A claims require little to no pre-hearing work and are easy and quick to resolve. Meanwhile, type B claims generally involve more judicial time, for example equal pay claims and unfair dismissal claims. As established by the order, the fees for a single claimant was £390 for a “type A” claim and £1,200 for a “type B” claim. In the EAT, fees of £1,600 are payable. Claimants and appellants could only seek remission of fees after satisfying two criteria. First, their disposable capital must be below a specified amount. Second, if this test was satisfied, then the amount of any remission was qualified by the applicant’s gross monthly income. The threshold for access to remission varied depending on certain factors, for example: whether the claimant is single and whether they have children. The only other exception for remission was if the Lord Chancellor was satisfied that there were exceptional circumstances which justified such deviation.
UNISON sought judicial review over the Fee Order scheme on the basis that it unlawfully prevented or restricted access to justice. The claim was first brought on the grounds that the Fee Order was indirectly discriminatory and breached the EU law principles of effectiveness and equivalence.4 The Divisional Court dismissed the claim on the basis that the proceedings were premature and lacked sufficient evidence to sustain the challenge.5 The Court of Appeal dismissed the judgment on the grounds that the imposition of a fee would not constitute an interference with the right of effective access to a tribunal under EU law unless it made it impossible in practice to access the tribunal.6 UNISON then brought an appeal to the Supreme Court.
A shift in focus:
Before discussing the judgment, it is important to point out the shift in focus which the argument took as it proceeded from the Divisional Court and Court of Appeal to the Supreme Court. Before the Divisional Court and Court of Appeal, the issue of the Fee Order’s effect on access to justice was challenged on the basis of EU law. Before the Supreme Court, although some reference was made to EU law and the jurisprudence of the European Court of Human Rights, it was recognized that as part of the UK’s common law constitution, there was a right of access to justice. The shift in focus from EU law to common law in UNISON is an ample reminder that even with rights guaranteed from EU law and the European Convention on Human Rights, the common law remains a source of constitutional rights. When the Human Rights Act was first introduced, the sole focus from the judiciary on the European Convention on Human Rights compromised the common law’s development and ‘left it in the cupboard.’7 Only recently have judges brought back the common law as a guarantor of basic rights. As Lord Reed illustrated in Osborn v Parole Board, which concerned the right to a fair hearing,one should not ‘suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with Strasbourg case law.’8 The focus by the Court on the common law was likely deliberate. The Judgment was handed down after the UK voted to leave the European Union and amid political hostility towards the European Convention on Human Rights. It is in this context that the Judgment illuminates the common law’s potential as a guarantor of basic rights.
The Supreme Court’s judgment:
In order to determine the extent of the power conferred on the Lord Chancellor by the 2007 Act, the court must consider both the text of the provision and the constitutional principles that underlie the text. Lord Reed noted that there are two important principles in this case to determine whether the Fee Order was unlawful under English law. First, the constitutional right of access to justice. Second, the rule that ‘specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act.’9
In English law, the right of access to the courts has been established since Magna Carta: ‘We will sell to no man, we will not deny or defer to any man either Justice or Right.’10 Applied to modern contexts, there are many examples where the judiciary has recognized the constitutional right of access to the courts, which can only be curtailed by clear statutory enactment by Parliament. As Lord Diplock remarked in Attorney General v Times Newspapers Ltd, ‘the due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities.’11 In accordance with the principle of parliamentary sovereignty, access to the courts should only be impeded through primary legislation from Parliament.
In principle, as Lord Reed noted, it can be justified for the executive to impose fees upon litigants. The imposition of fees is desirable because it transfers away costs from the general taxpayer to those that use the system. Moreover, a price mechanism could incentivise settlement and prevent weak claims from being pursued. However, in the context of the 2007 Act, Parliament did not expressly authorise the prevention of access to the relevant employment tribunals. As such, the fees imposed can only be justified if they do not lead to a real risk that persons will effectively be prevented from having access to justice. The court held that the present fee order imposed by the Lord Chancellor was not justifiable for five reasons. First, the Review Report on the impact of the fee orders concluded that the imposition of fees resulted in a ‘sharp, substantial and sustained fall in the volume of cases.’12 Second, the court was not comforted by the presence of the Lord Chancellor’s discretionary power of remission or by the statutory scheme. The effects of the Fee Order had occurred despite the existence of both remission avenues. The problems identified through the report and in the proceedings indicated a systemic issue.13 Third, for low to middle income households to meet the expenses, they would need to sacrifice ordinary and reasonable expenditure for substantial periods of time.14 Fourth, many claims brought in front of the ETs do not seek any financial award. The claims which do seek a financial award are generally quite modest, for example £500 for unlawful deduction of wages. If a litigant had to pay £390 in order to pursue a claim worth £500, they would only sensibly do so if they were virtually certain of success. In practice, there is never a guarantee of success when pursuing a claim. Thus, the onerous fees would ‘render it futile or irrational to bring a claim.’15 The evidence before the court suggested that only half of the claimants who succeeded in obtaining an award received payment in full, and around a third received nothing.16 Finally, the Lord Chancellor did not set the prices at an optimal level to maximize revenue and failed to consider the public benefits derived from the enforcement of rights before the Employment Tribunals.17 All of the reasons above led to the conclusion that the Fee Orders effectively prevented access to justice and was therefore unlawful. Given that the Fee Order was unlawful under domestic law, the other arguments presented were dealt with very briefly in the judgment.
On doctrinal grounds, the Judgment was reached using well-established common law principles of judicial review. The Supreme Court merely applied the test established in Hillingdon: whether the Fee Order was ultra vires depended on whether there was a ‘real risk’ that litigants would effectively be prevented from having access to the court.18 When reviewing this judgment, it must be emphasised that in UNISON the primary legislation contained no words authorizing the prevention of access to justice. However, Lord Reed, relying on the cases of Leech19 and Daly,20 also suggested in obiter that even where primary legislation was concerned, the imposition of an intrusion on the right of access to justice is subject to a presumed implied limitation: the intrusion ‘must not be greater than is justified by the objectives which the measure is intended to serve.’21 If this limitation was applied to primary legislation, it would appear to be a radical step in well-established principles of judicial review. As suggested by Murkens, ‘the real test would be if Parliament re-enacted the tribunal fees as an Act of Parliament.’22 In UNISON, Leech and Daly, the judicial review challenge was not against primary legislation, but orders and rules made by the executive. Therefore, the three judicial review challenges relied upon well-established principles of judicial review against the executive. However, if the implied limitation is used in practice concerning primary legislation by Parliament, the courts would be embarking on an unprecedented step against the doctrine of parliamentary sovereignty.
The judgment should be applauded for the robust defence of access to the courts in maintaining the rule of law. Access to the courts is important for the rule of law because ‘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.’23 The truth is that access to courts and tribunals are not just of value to individual litigants, but also to society. Every decision made by courts and tribunals contributes to the establishment of legal principles that applies to everyone. The courts and tribunals across the UK represent an avenue for litigants to enforce their rights. If a party or business fails to meet their obligation, a litigant should be able to seek a remedy against them. This ability to hold the other party to account is particularly important for relationships that are inherently unequal, such as the employer-employee relationship. In the context of employment tribunals, the mere fact that a claim can be brought by an employee will ensure that employers respect the rights provided by Parliament. If onerous fees prevent employees from making claims, employers could potentially disregard rights knowing that they will not be held to account before a court or tribunal.
Finally, the judgement demonstrates clearly the potential of the common law to protect the right of access to justice, but what about other rights? The first difficulty encountered by the common law as a guarantor of basic rights is that it lacks an established list of constitutional rights. Although, extra-judicially, Lord Cooke included among the list of common law rights: the right of access to a court and to confidential legal advice, the right to a fair trial, the right to equal treatment, and the freedoms of expression and religion;24 as illustrated by Masterman and Wheatle, there ‘remains no complete list of rights which the common law ranks as constitutional.’25 In addition, there are some fundamental rights under the European Convention on Human Rights that are missing from Lord Cooke’s list of common law rights. The right to private and family life provided by Article 8 and the right to freedom of assembly and association provided by Article 11 of the European Convention on Human Rights are notably absent among others. The weakness of domestic judicial review in protecting rights was noted by the European Court of Human Rights in Smith and Grady v UK. In the context of Article 8, despite the ‘anxious scrutiny’ test being applied where fundamental rights were concerned, the European Court of Human Rights still felt that the threshold for the domestic approach was so high that it was unable to provide adequate protection.26 Although UNISON demonstrates that the common law can be an adequate guarantor of the right to access of justice, it is important to note that the right being protected in UNISON has a long history of receiving strong judicial protection. Therefore, the impact of the judgment in highlighting the common law’s ability to protect all rights should not be overstated. It is regrettable that the Court did not comment on the common law’s standard of review for other fundamental rights.As a result, the common law’s ability to guarantee other rights, particularly those less well-established, remains precarious. Whether the common law can adapt and evolve to protect other rights currently recognized under the Convention will be thrust into the spotlight if the UK departs from the European Convention on Human Rights in the future.
The judgment in UNISON clearly displays the potential for the common law as an instrument to protect basic rights. In this aspect, it continues the narrative driven by the Court in Osborn27 and Kennedy,28 which highlighted the common law’s protection of the right to a fair hearing and the principle of open justice. In UNISON, the Supreme Court offered a robust defence of the importance of access to justice. However, the judgment leaves open two important questions. First, whether implied limitations apply to primary legislation made by Parliament. Second, despite the Supreme Court demonstrating that the common law will go to lengths to uphold the right of access to justice, it leaves open for discussion whether the common law can also be a powerful defender of other rights.
 R (UNISON) v Lord Chancellor  UKSC 51.
 Tribunals, Courts and Enforcement Act 2007, s 42(1).
 Tribunals, Courts and Enforcement Act 2007, s 42(3).
 The principle of effectiveness states that the procedural requirements for domestic actions must not render it impossible or excessively difficult to enforce rights derived from EU law. Meanwhile, the principle of equivalence prohibits discrimination between claims based on national and EU law.
 (n 1) .
 Lord Neuberger, ‘The role of judges in human rights jurisprudence: a comparison of the Australian and UK experience’ (Speech at the Supreme Court of Victoria, August 2014) .
 Osborn v Parole Board  UKSC 61, .
 R v Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrations  1 WLR 275, 290.
 Magna Carta 1297, section XXIX.
 Attorney General v Times Newspaper Ltd  AC 273, 309.
 (n 1) .
 ibid .
 ibid .
 ibid .
 Ibid , 
 R (Hillingdon London Borough Council) v Lord chancellor  EWHC 2683, .
 R v Secretary of State for the Home Department, Ex parte Leech  QB 198.
 R (Daly) v Secretary of State for the Home Department  UKHL 26.
 (n 1) 
 Jo Murkens, ‘Judicious review: the constitutional practice of the UK Supreme Court’ (2018) CLJ 77(2) 349, 368.
 ibid 
 Lord Cooke of Thorndon, ‘The Road Ahead for the Common Law’ (2004) 53 ICLQ 273.
 Roger Masterman and Se-shauna Wheatle, ‘A Common Law Resurgence in Rights Protection?’ (2015) 1 EHRLR 57, 59.
 Smith and Grady v UK, no. 33985/96, ECHR.
 Osborn v Parole Board  UKSC 61.
 Kennedy v The Charity Commission  UKSC 20.