Statutory authority for fees for tribunals and courts
Alec Samuels considers the background to the Unison case on employment tribunal fees, and whether it could have wider implications for the ordinary courts
Employment tribunals, like most tribunals, were set up to provide a simple, informal, and inexpensive forum for the employee, given the complicated, formal, and expensive court alternative. As the claimant employee was likely to be a person of limited or modest means, and often out of a job, no fees were payable.
However, the government later introduced fees – an issue fee and a hearing fee – by way of subordinate legislation under a general statutory power (the Employment Tribunals and Employment Tribunal Fees Order 2013, made under section 42 of the Tribunals, Courts and Enforcement Act 2007 and the Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013).
The Lord Chancellor argued that fees were justified because we live in an age of austerity and limited resources and it was right that a greater share of the cost of providing the public tribunal service should be borne by the users rather than the taxpayers. The fees were related to the nature and size of the claim. They were designed to incentivise the parties to settle, and to disincentivise weak and vexatious claims. Employers said that many employees brought “free” claims, so that the employer felt obliged to settle an unmeritorious and irresponsible claim rather than incur the expense of legal advice and assistance in successfully resisting the claim at a tribunal hearing. The new fees could be remitted or waived in exceptional circumstances. The parallel introduction of the principle that the loser pays the winner’s costs meant that the winning employee would in due course recover the fees anyway, though the award of costs in the tribunals is still rare.
Furthermore, it could have been argued that in many cases the relevant trade union would support and pay for the claimant employee. Where a number of identical or similar cases were involved a solicitor could organise a class or group of consolidated or test cases. Legal insurance could cover these eventualities.
But in R (Unison) v Lord Chancellor  UKSC 51, the claimant submitted that in fact the fees were counterproductive and nugatory. There was a huge fall in the number of applications or claims. The claim had to be made within three months, thus giving little time to raise the money. In many cases the fee was unaffordable or would have required a marked fall in the standard of living. Remission was discretionary, unpredictable, and uncommon. The fee could equal or even exceed the amount of the claim. The claim was often for a small amount, though important for the claimant. Indeed, the claim may be non-monetary (e.g. for a declaration of rights). Compliance and enforcement were all too often unfulfilled.
There was also no evidence of any increase in the proportion of meritorious successful claims or decrease in the proportion of unmeritorious unsuccessful claims. There was no evidence of any increase in the incidence of settlement; indeed, employers were delaying or refusing negotiation in the expectation or hope that the claimant employee would not go to the tribunal if negotiation failed. The introduction of fees was making the tribunal more like a court, contrary to the original purpose of the creation of the tribunal. The claimant accordingly claimed that the rights of the employee had been rendered ineffective, deprived of judicial protection, and that women employees suffered indirect discrimination.
Access to justice
The Supreme Court justices set down and applied some important and indeed fundamental principles of statutory interpretation and application, deriving from the common law and UK statutory law, including the international and European conventions on human rights and the Treaties of the European Union.
The rule of law posits and requires the right of access to justice. Access to justice is more than just a service in the form of a court or tribunal provided to an individual citizen; it is a public service, a public right, a constitutional right. The public are entitled to expect that the rights of the citizen will be respected, promptly and fairly upheld and vindicated in the courts and tribunals, and enforced. The practice of negotiation with a view to settlement would be useless if not able to be conducted against the background of resort to the court in the event of failure.
The principle of effectiveness (article 6, 13, and 47 of the European Convention on Human Rights) requires that a remedy must be available, and a fee, the cost of seeking vindication, must be a relevant factor. So the fee must be reasonable, affordable, proportionate, related to the sum in issue, related to the merits, and genuinely justified by a legitimate aim. Affordability is just one relevant factor. A fee which prevents vindication of the right is unlawful. Provided that it is justiciable, the matter may appear to be small or minor, but may nonetheless be socially important. The citizen needs the confidence of knowing that they have ultimate recourse to the court or tribunal if all else fails. The right of access of the individual citizen may bring public benefit to all.
Very clear, express, unambiguous statutory words are required to restrict or deny access to justice. The purpose of the legislation must be stated.
Such is the importance of the common law and the statutory rights of the citizen of access to the courts that they cannot be cut down except by clear, unambiguous, express words. For example, rights acquired under the EU can only be taken away, a far-reaching constitutional change, by an act of parliament, not by the exercise of prerogative powers (see R (Miller) v Secretary of State for Exiting the European Union  UKSC 5). Specific statutory rights are not to be cut down by subordinate legislation, and under different legislation. Express primary legislation is required. Any statutory provision purporting to bar or to impede access to justice must be interpreted in a restrictive manner, and only so far as is necessary to achieve the legitimate aim. An ostensibly private right may well have serious public implications affecting society as a whole. Without access, the law could become a dead letter. Access is vital for everybody.
In summary, the Supreme Court justices gave four principal reasons for their decision. First, employees in trouble are obliged to seek redress in the tribunal, and there was a real risk, indeed evidence, of a substantial falling off of claims. Second, the fees could not be described as reasonably affordable. Third, the evidence showed that applicants need to take their standard of living below normal levels. Fourth, the powers of remission of fees were very restrictive.
In Unison there was some evidence that female employees were more likely to be vulnerable to unequal pay, unfair dismissal, and other forms of discrimination, and therefore more likely to have to bring a discrimination claim (under article 14 ECHR and section 9 of the Equality Act 2010) and more likely to be discriminated against by the imposition of fees. The point remains unresolved, but the indications of consequent unlawfulness in the fee structure are fairly clear.
A constitutional right?
In recent years there has been much talk of constitutional rights. Is there, or can there be, any such concept under our constitution? No statute is entrenched. No statute has any special legal status. Any statute may be repealed by due process. A simple majority will always suffice. The UK has by parliamentary bill commenced the legal process to leave the EU. Parliament is sovereign. The spirit of the Fixed-Term Parliaments Act 2011 has proved readily disregardable. Magna Carta 1215 said that to no one will we sell or deny or delay justice. Yet by clear, express words in primary legislation, parliament if so minded could restore the fee regime for tribunals.
What are the wider implications of Unison? Is the case confined to the employment tribunal? Is the case applicable to all tribunals? Many of the applicants to the other tribunals are very similar in terms of social merit and limited means to the employment tribunal applicants. Is the case applicable to the ordinary courts which have experienced substantial rises in fees in recent years?
In the world of reality, most working class and middle class people are unable or unwilling to engage in civil litigation unless supported in some way. Like the NHS, civil litigation provides a Rolls-Royce service, but at a Rolls-Royce real cost, whether paid for publicly or privately. The Unison case went from the Divisional Court to the Court of Appeal to the Supreme Court, where five QCs and five juniors appeared, 24 cases were cited in the judgment, and 97 cases cited in argument.
For years now Lord Woolf, Lord Justice Jackson, and Lord Justice Briggs have been struggling with the costs problem, seeking by way of judicial management, budget costs, and protective orders to control costs and to relate them to the amount of money in issue. For the statute law, do we have such a thing as the constitutional statute, and, if so, how does it differ from an ordinary statute?
Alec Samuels is a barrister and former reader at Southampton University