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.

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SUCCESSION TO THE CROWN BILL

7th March 2013

LORDS COMMITTEE STAGE 28 FEBRUARY 2013

The power of the well-phrased question

Bob Morris

There is nothing in Parliamentary debate quite like the well-phrased question for cutting to the heart of things. An issue is encapsulated and the minister has to respond. Unlike podium assemblies where speakers may hector without interruption, the UK Parliament can suddenly be made alive by a pithy intrusion.

Under examination was the clause that would abolish the rule dating from 1689 that no-one married to a Catholic may succeed to the throne. Discussion turned to an amendment (subsequently withdrawn) which would have permitted the sovereign to be a Catholic but made arrangements during the reign for the Supreme Governorship to be shouldered by an Anglican qualified under the Regency Acts. As noted previously – including by the Commons Political and Constitutional Reform Select Committee (PCRSC) in December 2011 (HC 1615) – removal of the Catholic marriage disqualification leaves intact the absolute ban on Catholics and anyone else not in communion with the Church of England from succeeding. The latter would, of course, disqualify Catholics (and most non-Anglicans) from succeeding even if the explicit ban on Catholics were removed.

Lord Forsyth (a Scottish episcopalian, former cabinet minister and Scottish Secretary) asked what was it that the government were trying to achieve with the provision:

‘Are they trying to end discrimination against Roman Catholics or are they just trying to enable the heir to the Throne to marry a Roman Catholic?’ (Hansard, Lords, 28 February 2013, col. 1230)

He added that he would be horrified if it were the latter. Whilst it was a good thing that people who wanted to marry should be able to do so, he had thought that the provision ‘was part of a wider agenda of ending discrimination against Catholics. We need to understand why the Bill has not provided for that…’ Lord Stevenson then intervened to point out that the amendments tabled on the point went ‘to the heart of whether the present Anglican establishment in England can or even should remain in its present form’ and suggested that it was time for further Parliamentary consideration in some appropriate committee. This suggestion gained some support though not from the minister who sheltered behind the fiction that such matters were for Parliament alone itself to decide.

None of this will stop the Bill. Parliament knows when it is being bounced and in any case the things in the Bill are not in themselves bad things that should be stopped. On the other hand, what their Lordships pointed out was that, in the words of a PCRSC witness, ‘one cannot half open a can of worms, because all the worms will come out’.

Has the time come for Parliament to take a closer look? We shall see. What is certain is that the Forsyth question will not go away.

Judicial Independence Across the World: Pakistan

This is the third blog that looks at judicial independence in various countries. We have already examined the situations in Papua New Guinea, Nepal & Morocco. We now turn our attention to Pakistan, where one controversial court case has brought the judiciary, legislature, President and opposition parties into open conflict. In common with some of our other case studies, the separation of powers has become very blurred – the executive and legislature are ignoring court judgments, and the judiciary seem to be unusually active in their rulings over political & moral matters.

Pakistan: In April 2012 the Prime Minister of Pakistan, Yousuf Raza Gilani, was convicted of contempt of court by the nation’s Supreme Court. The judgment said that Mr Gilani had ‘wilfully flouted’ a court order.  The court had ordered Gilani to write to the Swiss authorities requesting them to open a corruption case against the Pakistani President, Asif Ali Zardari. In order to make this ruling the court had to, controversially, strike down the National Reconciliation Ordinance, a 2007 political amnesty law, on the grounds that it was unconstitutional.

Yousuf-Raza-Gilani

Yousuf Raza Gilani

Gilani’s lawyer, Aitaz Ahsan (who is also a senator for Gilani’s Pakistan Peoples Party), countered that reopening a case against a serving President would itself be unconstitutional, as incumbents benefit from legal immunity.

National Assembly members then requested that the Speaker of the National Assembly (Dr. Fehmida Mirza, also a PPP member) ask the Election Commission to have Mr Gilani removed from office and disqualify him as an MP. The opposition argued that under Article 63(1) (g) of Pakistan’s constitution, any person found guilty of defaming or ridiculing the judiciary is banned from being an MP.

On the 24th May 2012 the Speaker refused to refer the case to the election commission claiming that, “I am of the view that the charges… are not relatable to the grounds mentioned (in the constitution)”.

Both main opposition parties, Pakistan Tehreek-i-Insaf (PTI) and the Pakistan Muslim League-N (PML-N), then separately petitioned the Supreme Court. PTI’s petition asks the court to declare Speaker Mirza’s ruling unlawful and issue a stay order against Mr Gilani exercising Prime Ministerial powers until the court has reached a judgment. The petition also asks that the Election Commission decide Gilani’s eligibility. The PML-N simply asks that Mr Gilani is barred from performing further duties.

The petitions will be heard by a three member Supreme Court bench.

The judicial independence picture is further complicated by the fact that Justice Khosa, one of the seven member bench that convicted Gilani in April 2012, thought it appropriate to add a note to the judgment that was somewhat of a morality lecture to Pakistani’s. The note even goes as far as to compare the Pakistani executive with Stalinist Russia and encourages Pakistan’s populace to take note of the Arab Spring!

Judicial Independence Around the World: Nepal & Morocco

In a previous blog we looked at judicial independence in Papua New Guinea. Now, we turn our attention to judicial politics in Morocco and also in Nepal. The two nations are both facing constitutional upheaval, Nepal is currently ‘in-between Constitutions’ and Morocco has been in the process of wide-ranging reforms since July 2011, when a new constitution came into force.

Nepal: The caretaker Maoist government and opposition parties have recently been struggling to agree a new Constitution. Indeed, the Constituent Assembly was dissolved without a new Constitution in place. This was good news for Supreme Court judge Rana Bahadur Bam who was the subject of impeachment proceedings at the time – without a legislature the impeachment had to be abandoned. Mr Bam was allowed to remain as a sitting judge.

Rana Bahadur Bam had been accused of taking bribes in 2010 from suspects charged with abduction in exchange for giving them light sentences.

On 31st May 2012 gunmen on motorcycles attacked Mr Bam’s car as he left the Bagamukhi temple to drive to court in Kathmandu. Mr Bam was shot six times and later died in hospital.  Without a Constitution it could be argued that the judiciary are truly independent. However, without a legislature (to make law) and an executive (to enforce that law) the judiciary are left dangerously exposed to those in society who care little for justice, as was evidenced by the murder of Judge Bam.

Morocco: In May 2012 the Club of Moroccan judges, which represents more than half of the judiciary, launched a campaign to demand greater judicial independence. The Moroccan royal family and government currently have control of judicial promotions and salaries.

Approximately 2,900 judges then wore a red armband for a week as a form of protest.

Moroccan Judge Red Protest Armband

A red armband is tied to the robe of a Moroccan judge as a form of protest.

King Mohammed VI announced a new government panel, called the ‘supreme body for national dialogue on the reform of justice’. The panel is led by the Minister of Justice, Mustapha Ramid, and comprises forty members (including eight women). The aim is to draft a national judicial charter.

The panel did not get off to the most auspicious of starts when Taieb Nassiri (a former justice minister) suffered a heart attack at one of the panel’s first meetings. On a more positive note, the panel have already established a work schedule – seven topics to discuss and visits to ten cities, starting in Rabat on 7th & 8th June.

King Mohammed VI noted that “the independence of the judiciary, relative to the legislative and executive branches” is specified in the constitution. The monarch is the guarantor of judicial independence (see Article 107 Moroccan Constitution 2011).

Choosing the monarch as guarantor for judicial independence is an interesting concept. On one hand selecting the monarch is a wise choice; it provides a way to protect the judiciary without overtly politicising them – particularly as the integrity of the Monarch is taken as ‘inviolable’ by Article 46 Moroccan Constitution 2011.

At the same time, won’t the wave of democrats that have emerged in the Maghreb since the Arab Spring be troubled by the fact that the unelected judiciary is guaranteed by an unaccountable King?

Judicial Independence Across the World: Papua New Guinea

In a previous blog  we looked at judicial independence in Greece (where a judge has been appointed caretaker Prime Minister) and Hungary (where the ruling Fidesz have introduced constitutional reforms to place the management of the judiciary firmly in the hands of the executive).

We contrasted this with the stability of judicial independence in the United Kingdom. The debates in this country centre on some very abstruse technicalities, for example the changes to the composition of selection panels for Supreme Court judges proposed by the Crime & Courts Bill 2012. The constitutional position of the judiciary only very rarely enters the public consciousness – think of the recent Peter Hain case, although that was hardly a ‘stop the presses’ type story!

However, much as in Greece and Hungary, in many nations judicial independence is a ‘headline issue’. We are trying to avoid making value judgments on any of these particular cases, and we acknowledge that the judiciary aren’t always sacrosanct. Rather, this blog is just an observation on how judicial independence is a much more pressing political issue in some parts of the world.

We shall begin by looking at the recent, and very chaotic, events that have influenced judicial independence in Papua New Guinea. We hope that this is an appropriate starting point for blogs looking at global judicial independence – it is hard to think of a series of events that could violate the doctrines of the separation of powers more roundly!!!

Papua New Guinea: Two justices of the Papua New Guinean Supreme Court were recently arrested on charges of sedition. Chief Justice Sir Salamo Injia was apprehended by a police unit, led by the Deputy Prime Minister Belden Namah, which stormed into the Chief Justice’s court on 24th May 2012. Justice Nicholas Kirriwom was also detained and questioned by the authorities.

Mr Namah insisted that the Chief Justice was playing politics and was quoted as saying that “the Chief Justice is sick in his head”. The Chief Justice appealed to police and military personnel to abide by his ruling. “This country is being run by men who are happy to use force rather than the rule of law,” he said.

In late May 2012, the two judges had sat as part of a three man bench that ruled (for the second time) that Sir Michael Somare is the legitimate Prime Minister of Papua New Guinea, not Parliament’s choice, Peter O’Neill. Two other Supreme Court judges, Deputy Chief Justice Gibbs Salika & Bernard Sakora, had refused to hand down judgements, citing ethical reasons.  Justice Kirriwom was also accused of authoring an email (sent to other members of the judiciary) that referred to the O’Neill government as illegal.

In late 2011 Sir Michael, the long-time leader of Papua New Guinea, was out of the country receiving medical treatment. Parliament decided that (as Sir Michael had been absent for such a long time) the Prime Minister role was vacant. MP’s then elected Mr O’Neill as the new Prime Minister. In December 2011 the Supreme Court ruled that Sir Michael was the legitimate leader of Papua New Guinea, which briefly led to Sir Michael & Mr O’Neill being Prime Minister simultaneously!

Since then Mr O’Neill has been effectively running Papua New Guinea and it was his government that ordered the arrest of the judges.

Rather confusingly, the Deputy Speaker (Francis Marus) recently declared to Parliament that the court’s decisions would be accepted. However, Mr. Marus said that Sir Michael could not be reinstated as he had missed three sessions of Parliament since January. Nominations for a new Prime Minister were then thrown open.

This led to Mr O’Neill being elected (again) by Parliamentarians on 30th May 2012. The situation should become clearer after general elections in June 2012.

Greek politics and judicial independence

Panagiotis PikrammenosJudicial independence rarely comes to the forefront of contemporary European politics. Normally, the esoteric technicalities of how the judiciary interact with the other branches of government are not of interest to most people.

There are exceptions to this – a few months ago Viktor Orban’s ruling Fidesz party in Hungary was very publicly criticised by the Council of Europe’s Commission for Democracy through Law (the Venice Commission) for various constitutional reforms that placed powers for selecting, disciplining and allocating judges into the hands of the (politically appointed) president of the National Judicial Office, Tünde Handó. Mrs Handó’s appointment was even more controversial as she is married to József Szájer, a Fidesz founder and a current MEP for the party.

However, recent events in Greece have really put the politics back into judicial independence. A senior judge, Panagiotis Pikrammenos, has been appointed as caretaker Prime Minister. This has occurred in accordance with Article 37(3) of the Greek Constitution which holds that the Greek President, after giving various parties time to form coalitions (and then having a go at forming a cross-party coalition himself), can appoint the President of the Supreme Administrative Court of Greece (called the Council of State) to form a Cabinet in order to carry out elections and dissolve Parliament.

Mr Pikrammenos has recently appointed an interim Cabinet, mainly composed of diplomats, academics and former ministers. All sixteen members have agreed not to draw any salary for their work in the interim Cabinet.

Theoretically, the appointment of a judge as Prime Minister is a violation of major constitutional principles. It is more difficult, if not impossible, for the judiciary to be independent of the executive if a judge is in charge of the executive! The notion of the separation of powers is also ‘shot to pieces’ by the appointment of Mr Pikrammenos, especially when you consider that there is now no effective legislature from which the powers of the executive & judiciary should be separated.

However, on a more pragmatic level, there are several reasons why selecting Mr Pikrammenos’ was a relatively tidy solution to Greece’s constitutional problems. Firstly, the citizens of any democracy would, presumably, feel more comfortable with a judge in power. Control by the executive (the ‘machinery of state’) would smack too much of dictatorship, especially in Greece.

Secondly, the Greek Cabinet chose Mr Pikrammenos to become President of the Council of State in 2009 and so it could be argued that he has (very limited) democratic legitimacy.

Thirdly, Mr Pikrammenos is probably one of the most able candidates available. Mr Pikrammenos, an experienced administrative lawyer and judge, has knowledge of how government policy works in practice and how it impacts upon citizens.

Finally, it is important to remember that making a judge Prime Minister is a temporary solution and one that is only used in extremis. Greece is expecting to hold elections on 17th June.

Mr Pikrammenos’ name translates as ‘Mr Embittered’. It is likely that he will be after his month in office.

The Workings of the British Constitution and the Cabinet Manual

 Constitutional and Administrative Law Bar Association (ALBA) event

Topic: Government in the Age of Coalition: The Workings of the British Constitution and the Cabinet Manual

Speakers: Lord (Peter) Hennessy, Lord (Gus) O’Donnell, and Andrew Blick

Chair: Lady Justice Arden

Date: 14 March 2012, 17.45-19.15

Venue: Bingham Room (formerly the Spy Room), Gray’s Inn

Further details: