Rights in the Review of Delegated Legislation: R (UNISON) v Lord Chancellor [2017] UKSC 51

The UK Supreme Court’s decision today in R (UNISON) v Lord Chancellor [2017] UKSC 51 contains a fascinating discussion of the principles relating to vires review of delegated legislation that infringes on fundamental rights. There is much that will be of interest to public lawyers around the Commonwealth.

At issue was whether fees imposed in respect of employment claims, which must be brought in the tribunal system, were unlawful. Under section 42 of the Tribunals, Courts and Enforcement Act 2007, the Lord Chancellor has the power to prescribe fees. Exercising this power, the Lord Chancellor introduced a Fees Order, which prescribed steep fees for those who wished to access the tribunal system to enforce employment rights (see paras. 16-20). The goal was to shift the costs of operating the system from taxpayers to users (at para. 11). It bears noting that the sums at stake in employment disputes are typically modest (at para. 30), such that the Fees Order had a significant deterrent effect.

There are five points of general interest.

First, the common law constitution was brought to bear on the interpretation of the scope of the relevant statutory powers. To begin with, “[t]he constitutional right of access to the courts is inherent in the rule of law” (at para. 66). Here, moreover, the enforcement mechanism provided for by statute allowed claims to be brought which would “enable legislation to have the deterrent and other effects which Parliament intended, provide authoritative guidance as to its meaning and application, and underpin alternative methods of dispute resolution” (at para. 72; see also paras. 103-104). It is by now clear that “any hindrance or impediment by the executive” of the right of access to the courts “requires clear authorisation by Parliament” (at para. 78). As a result, if the delegated legislation created  “a real risk that persons will effectively be prevented from having access to justice”, it would be ultra vires (at para. 87). Indeed, “even where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation…[that]…the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve” (at para. 88). On the facts, the Fees Order “effectively prevents access to justice, and is therefore unlawful” (at para. 98).

Second, Lord Reed determined whether there was a real risk that persons would effectively be prevented from having access to justice not by reference to the circumstances of individual claimants, but by reference to statistical evidence contained in official reports:

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. In the first place, as the Review Report concludes, “it is clear that there has been a sharp, substantial and sustained fall in the volume of case receipts as a result of the introduction of fees”. While the Review Report fairly states that there is no conclusive evidence that the fees have prevented people from bringing claims, the court does not require conclusive evidence: as the Hillingdon case indicates, it is sufficient in this context if a real risk is demonstrated. The fall in the number of claims has in any event been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable (at para. 91).

The relevant questions had to be answered in what might be described as a common-sense manner, “according to the likely impact of the fees on behaviour in the real world” (at para. 92). Lord Reed supported the conclusions based on statistical evidence and common sense with some “hypothetical examples” proposed by the claimants, for it was “common ground that payment of the fees would result in the hypothetical households having less income than is estimated by the Joseph Rowntree Foundation as being necessary to meet acceptable living standards” (at para. 93).

This is an interesting approach, which can usefully be contrasted with the reluctance of courts outside the United Kingdom to apply common sense to statistical evidence suggestive of pre-judgement on the part of (in particular) immigration decision-makers.

Thirdly, the existence of a discretionary power of remission was not sufficient to save the scheme:

The statutory scheme of remission is of very restricted scope…The effects of the Fees Order have occurred notwithstanding the existence of that scheme. The discretionary power of remission may be capable of greater use than has been the case in the past, but it can only be exercised “where the Lord Chancellor is satisfied that there are exceptional circumstances which justify doing so.” The problems which have been identified in these proceedings are not confined to exceptional circumstances: they are systemic (at para. 95).

There are echoes here — and, indeed, throughout the judgment — of the Supreme Court of Canada’s decision in Trial Lawyers (noted here). A discretionary power of the same nature also existed in the scheme under review in that case, but McLachlin C.J. held that it would be an “affront to dignity” to ask for a remission of fees. In Trial Lawyers, the scheme under review was held to be unconstitutional (as a violation of s.96 of the Constitution Act 1867), but in a set of concurring reasons that track Lord Reed’s judgment quite closely, Cromwell J. applied common-law principles to reach a similar result.

Fourthly, Lord Reed held that the appropriate remedy was to quash the Fees Order as void ab initio:

It is argued on behalf of the Lord Chancellor that the evidence about the impact of the fees which is now available was not available at the time when the Fees Order was made. If the original decision to make the Fees Order was lawful, but the Lord Chancellor acted unreasonably in subsequently failing to decide that it should no longer be maintained in force, then it is argued that the appropriate form of relief is a declaration to that effect. That argument mistakes the nature of the illegality with which we are concerned. This is not a case in which an administrative decision is being challenged on the basis that relevant considerations were not taken into account, or on the basis that the decision was unreasonable. The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful ab initio, and must be quashed (at paras. 118-119).

That fees were imposed and paid (and that some impecunious employees were denied access to the machinery necessary to enforce their rights) without statutory authority may well lead to further litigation. One is not inclined to feel great sympathy for the Lord Chancellor, who must have known that the Fees Order would inhibit access to justice in these circumstances. But one can imagine more sympathetic respondents introducing delegated legislation in good faith only to find that it does not operate as anticipated and then to see it struck down as void ab initio.

Finally, in a stirring passage, Lord Reed invoked the rule of law:

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 (at para. 68).

I do not disagree with the substance of Lord Reed’s analysis, but it seems to me that two distinct principles or values are at play here: democracy and separation of powers. One can certainly bring them under the umbrella of the “rule of law”, but I tend to think that it is wiser to differentiate between them. For one thing, people come to the “rule of law” with differing preconceptions, particularly as to the extent that the concept requires the protection of “rights”. For another thing, if aspects of Lord Reed’s “rule of law” were to collide — as, for instance, where Parliament authorises a breach of the separation of powers — the concept would be at war with itself, creating a risk of incoherence. It is better, in my view, to think of administrative law doctrine as underpinned by four values, not by the rule of law alone (see here and here).

This content has been updated on July 26, 2017 at 15:13.