Tuesday’s UK Supreme Court judgment striking down the government’s employment tribunal fees regime is significant in two important ways.
The first is in what the court did. The imposition in 2013 of high blanket fees for those seeking to bring employment claims was quashed. The move had always been illiberal. To bring an unfair dismissal, equal pay and/or discrimination claim was costing claimants £1,200 in advance, at the very time they would invariably be in the weakest of financial positions.
Such claims should not be theoretical. A right of access to a court or tribunal should be capable of being exercised, or it is not a meaningful right at all. And in this appeal, brought by the Unison trade union, the Supreme Court justices held that high tribunal fee costs were as much an impediment as there not being a course of action.
The key issue was not that there were fees. The problem was that the fees introduced made no sense other than to deter people from enforcing their statutory rights. What parliament had given, executive action was taking away. In a line that would make the ghost of Charles Dickens — the great foe of legal fictions and artifice — smile, the Supreme Court justices went so far to base their points on the “real world”:
“The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world.”
They even explained basic economics to the government:
“…it is elementary economics, and plain common sense, that the revenue derived from the supply of services is not maximised by maximising the price. In order to obtain the maximum revenue, it is necessary to identify the optimal price, which depends on the price elasticity of demand. In the present case, it is clear that the fees were not set at the optimal price: the price elasticity of demand was greatly underestimated. It has not been shown that less onerous fees, or a more generous system of remission, would have been any less effective in meeting the objective of transferring the cost burden to users.”
The government had adopted a measure that made no sense and frustrated the exercise of rights provided for by parliament. That the government even thought these fees were appropriate says a lot about the poor quality of policymaking at the Ministry of Justice (a problem shared by many other government departments). The minister responsible for this botched policy, Chris Grayling, is no longer justice secretary but now transport minister. All the same, he should apologise for this policy failure.
The second way in which the decision is significant is in how it was done. The area of law involved is greatly influenced by EU law — but the Supreme Court’s ruling is Brexit-proof. That EU law is engaged is treated as merely incidental. The judgment is based expressly on fundamental constitutional principles in the domestic law of the UK. (The UK does, contrary to popular belief, have a constitution, but it is not a codified one.)
The justices could have approached this case in a narrow technical sense but chose not to do so. They refer to Magna Carta and the great jurists Edward Coke and William Blackstone. The decision is framed in first principles being applied to the details of a particular tribunal fee regime. Even more than the Miller decision on parliament having to authorise the Article 50 notification, this is a constitutional judgment.
Far from being the “enemies of the people”, as some newspapers have called senior judges in recent times, the Supreme Court has told the government that an attack on workers’ enforcement of their rights (which is the same in practice as attacking the rights themselves) is outside the law.
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