R (Unison) v Lord Chancellor

R (Unison) v Lord Chancellor

R (Unison) v Lord Chancellor was a landmark constitutional decision of the Supreme Court of the United Kingdom that struck down fees for Employment Tribunal claims as unlawful. The case involved the trade union UNISON, the executive office of the Lord Chancellor, and raised issues under the Equality Act 2010, the Human Rights Act 1998, and the Constitutional Reform Act 2005. The judgment, delivered by a panel including Lord Neuberger, Lady Hale, and Lord Reed, affirmed principles relating to access to justice, the rule of law, and administrative law remedies under precedents such as R (on the application of Daly) v Secretary of State for the Home Department and Anisminic Ltd v Foreign Compensation Commission.

Background

The dispute arose after the Secretary of State for Justice introduced fees for bringing claims to Employment Tribunals and the Employment Appeal Tribunal by using powers under the Courts and Tribunals Fees Order 2013 and the Tribunals, Courts and Enforcement Act 2007. These reforms followed consultations led by ministers in the Cabinet Office and proposals influenced by reports from bodies such as the Clementi Review and discussions in the House of Commons and House of Lords. The fees regime created substantial charges for claims, including fees for lodging and hearing, which drew criticism from UNISON, campaign groups like the Trades Union Congress, and academics at institutions including University of Oxford and London School of Economics.

Facts and Procedural History

UNISON brought judicial review proceedings challenging the legality of the fee orders on grounds including incompatibility with the Human Rights Act 1998 and illegality under domestic administrative law. The claimants argued that fees impeded access to Employment Tribunal justice and discriminated against protected groups under the Equality Act 2010. The High Court of Justice (Administrative Court) gave judgment, and the matter proceeded to the Court of Appeal, where a majority dismissed aspects of the challenge but allowed other points to proceed. The case was then appealed to the Supreme Court of the United Kingdom, where interveners included the Equality and Human Rights Commission and trade unions such as Unite the Union.

Legal Issues

Central legal issues included whether the Lord Chancellor had lawfully exercised powers under the Tribunals, Courts and Enforcement Act 2007 and whether the fees scheme was incompatible with the right of access to a tribunal as protected by the Human Rights Act 1998 and the European Convention on Human Rights, particularly Article 6 jurisprudence as interpreted in cases like Golder v United Kingdom. Additional legal questions addressed whether the fee regime breached the Equality Act 2010 by imposing disproportionate burdens on claimants from protected characteristics and whether the policy satisfied standards of rationality and proportionality under administrative law precedents including Council of Civil Service Unions v Minister for the Civil Service.

Supreme Court Decision

The Supreme Court of the United Kingdom held that the fees order was unlawful because it prevented access to justice in a way that was incompatible with the statutory right of access to tribunals created by Parliament. The judgment, authored by members of a panel including Lady Hale and Lord Neuberger, applied principles from authority such as R (Daly) v Secretary of State for the Home Department and reiterated the constitutional role of the Lord Chancellor under the Constitutional Reform Act 2005. The Court concluded the fees were not a proportionate means of achieving legitimate aims like cost recovery or reducing frivolous claims, and therefore the scheme was quashed, with orders requiring fees to be reimbursed to many litigants.

Impact and Significance

The decision had immediate effects on access to Employment Tribunals, prompting the Ministry of Justice and the Lord Chancellor to abandon the fees regime and address outstanding claims and refunds. It influenced subsequent debates in the House of Commons and House of Lords about tribunal reform, and affected litigation strategy by organizations including Citizens Advice, Law Centres Network, and charity litigants associated with Shelter (charity). Academics at University College London and commentators in outlets like the BBC and The Guardian framed the ruling as a reinforcement of the rule of law and judicial protection of statutory rights, and it has been cited in later decisions concerning administrative discretion, fee regimes across tribunals, and the substantive limits of executive power under the Human Rights Act 1998 and the Constitutional Reform Act 2005.

Category:United Kingdom constitutional case law