We will sell to no man, we will not deny or defer to any man either Justice or Right.
This statement of legal principle from Magna Carta remains on the statute book. (Chapter 29 of the version issued by Edward I in 1297). Unlike much on the statute book it remains relevant today. It was the main principle on which the Supreme Court relied in its decision to quash the fees introduced by the Lord Chancellor for proceedings in the Employment Tribunal and Employment Appeal Tribunal: R (UNISON) v Lord Chancellor  UKSC 51.
The aim of the fees was to shift some of the costs of these proceedings from the taxpayer to those using the tribunals and to deter unmeritorious claims. Both of these aims are – as the Supreme Court accepted – sound in principle. The problem was the way the Lord Chancellor went about it. The fees were fairly high: £390 for simple claims which involved little judicial work and a hearing of one hour and £1,200 for more complex claims which would involve more case management before hearings and longer hearings.
Many claims in the employment tribunal are for small amounts (for instance unlawful deductions from wages). Others do not involve a monetary claim at all (such as for provision of written particulars of employment). It was therefore widely predicted that the introduction of fees would cause a big reduction in the number of claims.
These predictions turned out to be true. The appellants UNISON and the Lord Chancellor both accepted that the fall was in the region of 66-70%. It was clear that the fees were having a significant deterrent effect.
UNISON’s challenge to the legality of the fees was unsuccessful in the High Court and the Court of Appeal. It succeeded in the Supreme Court. The leading judgment was given by Lord Reed.
Lord Reed was at pains to spell out that access to justice means more than the use of adjudication services. Court decisions will often have wider benefits to society. He cited as an example the classic case of Donoghue v Stevenson  UKHL 100 which established that producers of consumer goods owe a duty of care to their consumers. Moreover, even in cases which only resolved disputes between the parties a wider public interest was served. Laws were meaningless unless there was a practical way of enforcing them.
Barriers which prevent access to justice are unlawful. Lord Reed referred to cases in which prisoners had been denied access to the courts before internal remedies had been exhausted. The courts had decided that there was no power to impose any such restrictions.
The Supreme Court had no difficulty in deciding that the tribunal fees were a barrier to access to justice. Both the facts of the decline in the number of claims and the statistics demonstrating that for a substantial proportion of potential claimants it made no economic sense to start proceedings, meant that the principle of access to justice had been infringed.
The evidence showed that the fees had been unsuccessful in other ways. They had not reduced the proportion of unmeritorious claims as the success rate had reduced. This may indicate that only the really determined pursued their claims in defiance of economic logic. Nor had it encouraged earlier settlements. Employers had become less inclined to settle, partly because they were waiting to see if the employee was going to pay the fee.
Lord Reed went on to consider whether the fees order could be justified as a necessary intrusion on access to justice. Here his judgment gets pretty scathing. The Lord Chancellor had considered fixing the fees at a lower level. Both the LCD’s own review report and the case before the Supreme Court said he had decided not to do so as if the fees were higher the proportion of the cost of the service transferred to its users would increase. Or not. A moment’s thought would have told them that for everything there is a price at which demand for a service will reduce to zero. The fees had been fixed at a level where demand had been reduced disproportionately.
For good measure, the court also found that the fees were unlawfully discriminatory contrary to the Equality Act 2010. The higher fees for complex claims put women at a particular disadvantage because more such claims were taken by women. The fees had not been effective in transferring the cost of cases from the taxpayer to users of the tribunals and in some cases (such as pregnancy dismissals) there was no evidence that these involved tribunals in a more significant workload.
Having decided that the fees were unlawful, the Supreme Court had to consider what to do about it. The Lord Chancellor argued that the right course of action was to make a declaration. This would have then provided an opportunity to decide how to cope with the implications. However, on the basis that the fees had been unlawful from the outset, and void from the beginning, the court quashed them.
As a result of the decision, fees have been scrapped and the Government is repaying those who paid them. There is the possibility of claims from those who were deterred from bringing claims as a result of the fees regime. In the longer term it will be possible for the Government to reintroduce some form of fees for employment tribunals but it will have to take on board the numerous flaws in the previous regime exposed by this decision.