Supreme Court flexes constitutional muscle

Today’s decision in the Tribunal Fees case – R(UNISON) v Lord Chancellor [2017] UKSC 51 – is hugely significant on a number of fronts which I expect to be linking to very soon.

However, I am not an employment lawyer and would not dare to tread on erudite toes on constitutional issues. But I do need to say something about the case.

In brief, the judgment written by Lord Reed was a lesson in constitutional law that will doubtless be required reading on any course worth the name. It is written in clear language which does not require the reader to be a lawyer or constitutional scholar to understand. It demonstrates in that clarity one other key principle of the law – that it should be accessible to all. That admirable clarity makes it easily accessible for anyone to understand the principles that the case enunciates.

It draws from centuries of common law principles that are so solid as to be immovable objects in the world of (English) common law – it is a judgment crafted to stand on common law principles; without the need for either modern invention of European Union law or Human Rights (at least in terms of the Act) to be relied upon.

By relying on common law principles the decision does not face later criticism if (for example) the Human Rights Act were repealed. Instead, it reminds us all that the basic standards set down in the UN Declaration of Human Rights (and eventually our own Human Rights Act) are essential requirements of a civilised nation which we recognised long before it was necessary to fix them in writing. As a country which has not faced revolution in so many centuries there has been no British impetus to nail a Bill of Rights to the courthouse door as so many nations have felt the need to when coming out of such a preiod of upheaval and rule of might rather than rule of law.

The judgment is almost as brief as it can be whilst both determining the case in front of the court and also setting out a clear position that the Supreme Court will not shy away from its constitutional role to hold the government to account for legislation which is unconstitutional.

At its heart the common law decision is that access to the courts is not a service which only benefits the vindicated claimant. Rather two significant benefits to society arise – firstly that the body of common law relies upon these difficult cases to clarify and extend the law; and secondly, but no less importantly, by having effective access to the courts.

That is what is meant by “Rule of Law”, that the law is known (or discoverable), can be determined if it is not clear, and CAN BE ENFORCED EFFECTIVELY. Once enforceability is compromised for the weakest in society, the strong will run roughshod, at first over the poor, then the less poor, until there are no rights but those that can be enforced by force – be it monetary or main strength.

If you can read nothing but paragraphs 66 – 68 you must read these.

Of course there is a good basis in modern Human Rights law to support the decision made – and because this is a more modern issue the ECHR jurisprudence on access to justice and at what point a legitimate requirement (particularly to pay a fee) becomes a breach of Article 6. Between paragraphs 110 and 115 there is a clear outline of the issues of the constitutionality – as well as lawfulness under Article 6 – of fees between an individual and the courts. This is doubly useful in that it provides the government with a framework of the issues that the Supreme Court considers necessary to be considered in any future court and tribunal fees legislation.

The other interesting point, and one which goes to the heart of the process being challenged, is the Supreme Court’s willingness to require the government to prove assertions made in consultations and responses. Whilst this may not seem to be a significant issue, the criticism levelled by the court provides future challenges with good ammunition to pin down decision makers who have pre-conceived notions or other unsupported opinions and hold such decision makers to account.

This is a victory which has far more importance than the case being fought.

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