Unison v Lord Chancellor: the things that landmark constitutional cases are made of

On Wednesday the UK Supreme Court ruled court fees for claims before employment tribunals, introduced by the coalition government in 2013, to be illegal. Christina Lienen argues that this judgement is likely to join the ranks of landmark constitutional decisions, given its characterisation of the UK constitution as founded in common law and therefore in the hands of judges rather than politicians.  

On Wednesday, in a single majority judgement, the United Kingdom Supreme Court (‘UKSC’) declared the recently introduced court fees for claims before employment tribunals and employment appeal tribunal to be unlawful. In this post it is argued that Unison v Lord Chancellor [2017] UKSC 51 promises to join the ranks of constitutional landmark decisions owing to (i) the autochthonous choice of legal sources and particularly the reliance on common law constitutional rights, and (ii) the unequivocal commitment to the rule of law. Their significance is underpinned by the vigorous scrutiny with which the arguments on both sides were examined as well as by the quashing remedy given.

The facts and the law

The law in question is the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/1893 (‘the Fees Order’), adopted by the Lord Chancellor in the exercise of his statutory powers. Under the rules, a claim can cost a single claimant between £390 and £1600. In September 2014, Unison issued a claim for judicial review seeking to have the Fees Order quashed on the grounds of effectiveness and discrimination, mainly on the basis of European Union law, although partial reference was made to some domestic authorities and judgements by the European Court of Human Rights. The Supreme Court went down the common law route instead, asking whether the fee order was ‘unlawful under English law’. Lord Reed’s judgement is endorsed by all members of the panel, with Lady Hale writing a separate judgement on the issue of discrimination, which is not considered at great length in the majority judgement.

The autochthonous choice of legal sources and common law constitutional rights

The constitutional magic of the judgement happens in paragraphs 64 to 104. By saying that ‘the right of access to justice is not an idea recently imported from the continent of Europe, but has long been deeply embedded in our constitutional law’ [64], Unison echoes the jurisprudence on common law constitutional rights that was shaped powerfully by other UKSC judgements, including notably Osborn v Parole Board [2013] 61 UKSC, A v British Broadcasting Corporation [2014] UKSC 25, Kennedy v The Charity Commission [2014] UKSC 20, and also Rhodes v OPO (by his litigation friend BHM) and another [2015] UKSC 32 and Beghal v Director of Public Prosecutions [2015] UKSC 49. Similar to those cases, Unison displays an emphasis on (a) the historical foundation of these rights by reference to Magna Carta [74], (b) intellectual authority by reference to Sir Coke’s seminal Institutes of the Laws of England, which address the right of access to the courts [75], and (c) case law from the first peak of common law constitutional rights in the 1980s and 1990s, prior to the passing of the Human Rights Act 1998 [76-80]. Particular attention is paid to the Court of Appeal decision in R v Lord Chancellor, ex p Witham [1998] QB 575, which is used as precedent.

Importantly however, Unison goes further than these authorities. In contrast to Osborn, it not only puts the common law centre-stage by making it the starting point of the legal analysis but also implies, in the context of this right at least, the sufficiency of the common law [89]. Furthermore, in contrast to A v BBC, this judgement is more consistent as both the law and the application of the law to the facts is common law based rather than ECHR or EU law based, thereby mirroring the approach in Rhodes. Finally, citing R v Secretary of State for the Home Department, ex p Leech [1994] QB 198 and R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, Lord Reed says that ‘even where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation’, thereby bolstering the authority of the common law and the discretion of the courts in the face of explicit statutory human rights abrogation [88]. This last point is closely connected to the court’s commitment to a rich notion of the rule of law.

Lord Reed does not refer to his judgements in Osborn, A v BBC and the like, but instead spends considerable time discussing judgements from the first wave of common law constitutional rights. Perhaps this means that the substantive constitutional right in question, here access to the courts, is considered more pertinent than the underlying power of the courts to develop these rights. None of the younger judgements engage the right of access to the courts. Or perhaps the fundamental question as to the power of the courts to locate constitutional rights at common law and to enforce them against legislation was being avoided.

The rule of law and notable structural and stylistic features

In what can be interpreted as a clear commitment to a nuanced, purposive reading/construction of statutes, Lord Reed states that ’in determining the extent of the power conferred on the Lord Chancellor by section 42(1) of the 2007 Act, the court must consider not only the text of that provision, but also the constitutional principles which underlie the text, and the principles of statutory interpretation which give effect to those principles’ [65]. Here the principles in question, according to Lord Reed, are the constitutional right of access to justice and the doctrine that ‘specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act’ [65].

The constitutional right of access to the courts is declared to be inherent in the rule of law. At the same time, the latter is said to be maintained by the right. In other words, Lord Reed establishes a notion of co-dependence between the two: one cannot be without the other. As part of what has to be seen as an extraordinarily lengthy and determined judicial analysis of the rule of law, Lord Reed, in what I consider to be one of the most powerful paragraphs of the judgement, says:

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 [68] (see Paul Daly on the potential risk of incoherence under this definition).

The constitutional significance of the judgement, and indeed the importance of the rule of law, is further enhanced by the subtle use of language and precedent and the thoroughness with which the legal analysis is conducted.

For instance, the example Lord Reed gives to underpin the importance of the courts developing legal principles for the benefit of all and not just the claimant (see Joe Tomlinson on this point) is the seminal House of Lords decision in Donoghue v Stevenson [1932] AC 562. Lord Reed also specifically recognises the law-making role of the courts by saying that the common law is created, applied and enforced by the courts themselves [68]. Lord Reed then rather sharply points out to the Lord Chancellor that he himself relied on over 60 cases in his submissions, insinuating that he would clearly appreciate the importance of cases being brought to the courts. Further, as Mark Elliott points out, ‘it is striking that the Court was prepared to engage in detailed consideration of relevant statistical and financial information, so as to build up a comprehensive picture of the real-world impact of the Fees Order’, which notably included the consideration of hypothetical scenarios [50-55]. The vigour with which the arguments on both sides were scrutinised creates an atmosphere of seriousness and responsibility. Finally, stating that the Fees Order is unlawful ab initio and consequently quashing it [119] gives the judgement real bite.

Conclusion

With this judgement, Lord Reed, the author of Osborn and A v BBC, further establishes himself as one of the key judges shaping the common law constitution, comparable perhaps to Laws LJ in the 1980s and 1990s and Lord Bingham in the 1990s and 2000s.

In effect, the UK constitution is characterised in Unison as ultimately being founded in the common law, and therefore, controversially, in the hands of the judges, rather than the politicians. Unison in this sense strengthens the notions the rule of law, the separation of powers and the UK constitution displayed in R (Evans) v Attorney General [2015] UKSC 21, and it will at the very least, together with R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, be seen as one of the most important UKSC judgements of 2017.

About the author

Christina Lienen is a PhD candidate and Teaching Fellow in the UCL Faculty of Law. Her research focuses on UK constitutional law, and in particular on common law constitutionalism and its utilisation and development by the senior judiciary.

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