On 26 July 2017 the Supreme Court held that the legislation which introduced fees for bringing claims in the employment tribunal was unlawful as it had the effect of preventing access to justice. The case is R (on the application of UNISON) v Lord Chancellor  UKSC 51.
In 2013 the UK Government introduced fees of between £390 and £1,200 (depending on the type of claim) for bringing a claim to the employment tribunal. Prior to this, there were no fees for bringing any claims to the employment tribunal. The Supreme Court held that the fee regime, in its current form, is unlawful.
In their judgement, the Supreme Court emphasised the importance of the rule of law and the constitutional right of access to justice, noting at paragraph 68 that:
“At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.”
The court held (at paragraph 98) that the current fee regime effectively prevents access to justice and is therefore unlawful. This does not mean that imposing fees for bringing claims in the courts and tribunals is always unlawful. The Supreme Court notes at paragraphs 86 and 87 that:
“Fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice. Measures that deter the bringing of frivolous and vexatious cases can also increase the efficiency of the justice system and overall access to justice... The Lord Chancellor cannot, however, lawfully impose whatever fees he chooses in order to achieve those purposes.”
As highlighted at paragraph 91:
“In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission. The evidence now before the court, considered realistically and as a whole, leads to the conclusion that that requirement is not met.”
Why, you may wonder, is a case about the employment tribunal of interest to an immigration solicitor? As previously covered on our blog here and here, the UK Government introduced legislation in October 2016 dramatically increasing the fees for bringing claims to the immigration tribunal. The fee for appeals to the First-tier Tribunal (Immigration & Asylum Chamber) increased from £140 to £800 and new fees were introduced for appeals to the Upper Tribunal which were previously free of charge. A little over a month after the legislation came into force, the Government announced that the fees would be returned to their previous level and that all those who had paid the higher fee would be given a refund.
This welcome U-turn was accompanied by an ominous reminder that this was merely a temporary measure pending further review. The Government had not abandoned their intention to increase the fees; they merely wanted to give it more thought. Nothing further has been announced and the review is presumably ongoing (it was most likely placed on hold pending the decision of the Supreme Court in relation to employment tribunal fees).
Given the recent judgement of the Supreme Court it would appear that it is no longer open to the Government to introduced unaffordable and prohibitive tribunal fees which prevent access to justice. The reference in the Supreme Court’s judgement to the important role that courts and tribunals play in ensuring that the executive branch of government carries out its functions in accordance with the law is particularly relevant in an immigration context where litigation is always between an individual and the executive branch of government. Many of the reasons for declaring the employment tribunal fees unlawful are equally relevant in the context of immigration tribunal fees. Hopefully the Government will now abandon their proposal to increase fees for the immigration tribunal and will not make the same mistake they did with employment tribunal fees.