The bold return of the common law

It took dogged determination, and the confidence of knowing the law was utterly wrong, for Unison to achieve what was unthinkable four years ago: a unanimous Supreme Court ruling that employment tribunal fees, introduced by statutory instrument under former lord chancellor Chris Grayling, were unlawful.

The immediate consequence is that the fees will be quashed, meaning that employment tribunal claims are now once again free to bring. The government also faces a bill of about £32m to refund claimants who paid the fees in the past four years. What makes the case especially remarkable, however, is the history of the arguments and how the Supreme Court eventually reached its decision.

The initial applications for judicial review were dismissed, the first one, in 2013, as “premature” and, the second one, in 2014, as lacking in evidence showing the fees were unaffordable and prevented access to justice. The Court of Appeal upheld these findings. Prospects were bleak, even when permission to appeal to the Supreme Court was granted.The first set of arguments in the High Court was based on a breach of the EU principle of effectiveness as implemented in the public sector equality duty in the Equality Act 2010. Before the Supreme Court, the Unison legal team made a bold decision: base their appeal almost entirely on the common law right of access to justice.

Giving the court’s decision, Lord Reed goes into extensive detail about what this entails. He takes us back to Magna Carta, Coke, and Blackstone, before considering more recent precedents on unjustified interference with the right to access to the courts. It’s the common law as a living instrument.

It’s not the first time the Supreme Court has welcomed common law-based appeals, but it’s by no means a regular occurrence. I spoke to Lord Neuberger the day after the ruling and suggested that, in the context of Brexit, this could be a turning point, with British judges returning to the common law as a means of retaining control after Britain leaves the EU.

The outgoing president of the Supreme Court, who has done much to bring the common law back into the spotlight, winced and said the common law had been regaining traction since “well before Brexit was even a blink in anybody’s eyes”. This may be so, and Lord Neuberger could not be expected to stray into conversations that may be regarded as political. But the meticulousness of Lord Reed’s decision tells a different story.

The Supreme Court could have chosen a different approach, used different words, produced a shorter decision. It didn’t. Lord Reed went to great lengths to take the government back to basic principles of English law. His examples of what “affordable” means “in the real world” are a bold rebuttal of the government’s argument that aggrieved employees could simply save up to fund their claims; that “affordable” isn’t just about being able to pay but also about whether it is worth putting oneself through the grinding wheels of litigation.

Likewise, his confident rejection of the government’s assumption that courts and tribunals provide a service that “users” must fund, and that it is otherwise of no wider value to the public. His disdain for this approach is best encapsulated in the paragraph reminding the government that without the hundreds of cases involving ordinary people that have allowed the courts to develop and refine the law, the government would not have been able to rely on the 60 precedents it put forward in defence of its position.

This is not an ordinary ruling. It’s a call to arms, a rallying cry to other judges to be fearless against a government tempted to bypass the parliamentary process. And it’s unlikely to be the last.

Jean-Yves Gilg, editor-in-chief

jean-yves.gilg@solicitorsjournal.co.uk

@jeanyvesgilg