Last year’s monumental decision by the Supreme Court in Unison ruled that the introduction in 2013 of fees for claimants to bring discrimination, unfair dismissal and other employment claims was unlawful.
This was an excellent decision, for which Unison deserve a lot of credit. In the aftermath I discussed this case with colleagues and the Government’s likely response and expressed the view that I expected fees to return.
In a worrying sign Lucy Frazer MP, a barrister and Under Secretary of State of State for Justice has today answered a written parliamentary question as follows (emphasis added):
On 26 July 2017, the Supreme Court handed down judgment in the case of R (Unison) v Lord Chancellor in which the court quashed fees in the Employment Tribunals and the Employment Appeal Tribunal. Employment Tribunal fees were stopped in light of the judgment and, on 15 November a scheme to refund all those who had paid was launched. A review is being conducted on how we charge fees in light of Unison details on the proposed approach will be published in due course.
What is unfortunate is that the response makes clear the review is not to consider “whether fees should be charged” but simply “how we charge fees in the light of Unison.” The response does not set out the level (or to whom the fees will apply, claimant, Respondent or both) but it makes clear the Government intends fees to in some form return. That response itself suggests Unison is not being adequately grappled with. To quote Lord Reed’s constitutional commentary in the case
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.
Given this constitutional role of Courts and Tribunals in upholding laws as something more than just “dead letters” isn’t the more fundamental question which Frazer’s answer evades whether fees should be charged at all?