Parliament versus the people
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In rejecting the government's article 50 appeal, the Supreme Court will not be defying the will of the people. It might, however, rebel against parliament raising court fees, says Kerry Underwood
The Supreme Court will soon hear two matters of considerable constitutional significance. One is the government’s appeal against the Administrative Court’s decision that the triggering of article 50, to commence the process of the UK leaving the EU, must be considered by parliament.
The High Court’s decision, so obviously correct, was greeted with newspaper headlines such as ‘The judges versus the people’ (The Telegraph) and ‘Enemies of the People’ (Daily Mail). The judges were subject to personal abuse and comments about their private lives from the newspapers.
What on earth is going on in this country? The people of the UK vote in a referendum, set up by parliament, to exit the EU, with a major issue for many people being the wish to return powers to Westminster. Yet the government seeks to make that an administrative decision exercised by way of the royal prerogative and thus avoid parliament.
It is simple – members of parliament should be expected, whatever their personal views, to respect the wishes of the majority in the referendum. If they do not do so, or rather, as the government and Brexiteers believe, cannot be trusted so to do, then that is parliament, not the courts, defying the will of the people. The Queen then dissolves parliament and the electorate takes its revenge. Although not wishing to presume the outcome, you could earn some extra Christmas money by betting on an 11-0 Supreme Court ruling here.
The second issue, less well-known but arguably more important, and much harder to call, is the appeal against the refusal of the Administrative Court to quash the introduction of employment tribunal fees.
It is accepted that the fees have led to a 70 per cent reduction in claims. Evidence is already emerging that the massive rise in ordinary court fees has led to a sharp drop in the use of the courts. The wider issue is the extent to which the Supreme Court is able to control the procedure of the courts, irrespective of what parliament says.
Let us take an absurd example. Parliament passes an Act saying employment tribunal fees will be £1m per claim, while leaving in place the employment legislation that gives people what would then be entirely illusory rights.
Could the Supreme Court say: ‘We are the Queen’s courts, not parliament’s courts. As to applying the law we are always bound by parliament and so if you abolish all employment protection laws then that is that. But while you, parliament, leave those laws in place we, the Queen’s courts, are entitled to operate in a way that gives people access to them. Any other view would be to defeat the will of parliament as passed in any other legislation.’
In practice, what happens if the courts defy parliament on fees and simply keep hearing cases and making decisions? Do the bailiffs and the police enforce those orders or not?
You may think this is fanciful, but the effect of tribunal fees has been to repeal employment protection for most people. As Harold Wilson famously said, if you are unemployed then the unemployment rate is 100 per cent. If you cannot afford a tribunal fee, then you have no employment rights.
Take this together with the 600 per cent increase in some court fees and proposals to ban compensation for real soft tissue injuries and it is a lot less fanciful than you think. This is the thin end of the wedge and if these fees are allowed to remain then they will go up and up. This is parliament versus the people, not the courts versus anyone.
I do not envy the Supreme Court’s task but I believe it would be justified in asserting, in appropriate cases, the right of the courts to ensure that the public have access to justice for the remedies provided by parliament itself.
Kerry Underwood is senior partner at Underwoods Solicitors