R (Unison) v Lord Chancellor  UKSC 51, 26 July 2017
What was the case about:
The government’s decision to introduce fees in the Employment Tribunal.
Brief summary of the decision/issue and outcome:
Unison was challenging the decision to introduce fees for bringing a claim in the Employment Tribunal. The Tribunal had always been free to use and most claims resulted in modest awards. The government’s rationale for introducing the fees was that the civil justice system should be self-funding – those who use the courts or tribunals should pay to do so.
Unison first tried to challenge the decision in 2014, but the court found that the challenge was premature as it did not have the evidence to prove that people were being discouraged from bringing their claims. The government was reluctant to provide information as to the falling numbers of claims. Unison used the Freedom of Information Act 2010 to request the data, which showed a dramatic fall of about 80% in the year of the final hearing. Their second claim succeeded: the Supreme Court quashed the decision on the basis that the effect of imposing the fees was that people were unable to afford to bring their claims. This amounted to a breach of the constitutional right of access to the courts.
The court found that the order was unlawful, because it operated to limit the constitutional right of access to the courts without justification.
Although not part of the decision, Lady Hale also expressed the view that the way the fees order operated was indirectly discriminatory in relation to women. Claims based on sex discrimination (including pregnancy related dismissals) were brought more by women than men and comparing the fee for discrimination claims to the levels of compensation awarded, this put women at a disadvantage compared to men. This discriminatory impact could not be justified.
Why is it significant? What does it illustrate?
It is a significant decision in relation to access to justice and the cost of bringing legal claims. It also illustrates the tricky issue of deciding when to bring a claim for Judicial Review. In this case the first claim was held to be premature but the later claim succeeded, based on evidence of the cost to ordinary families and a 75% fall in the numbers of claims being brought.
Any other features of interest
Unison relied on evidence which modelled the average family income of people earning the minimum wage, their necessary expenditure and the affordability of the fees. This evidence strengthened the case, as it demonstrated that most families would not be able to afford the fees without sacrificing other necessary expenditure, such as on children’s clothes. The case illustrates the importance of evidence of the real-life impact of a public body decision.
It also shows how organisations might ‘intervene’ in a Judicial Review. The Claimant was Unison but two ‘interveners’ were also allowed: the Equality and Human Rights Commission made oral submissions and the Independent Workers Union of Great Britain made written submissions.