Authored By: Alicia-Khalia Nembhard
Arden University
Case Citation and Basic Information
Case: R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51.
Court: Supreme Court of the United Kingdom
Date of Judgment: 26 July 2017
Judges: Lord Neuberger PSC, Lady Hale DPSC, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson and Lord Reed
Area of Law: Constitutional Law – Administrative Law – Employment Law – Access to Justice
Introduction
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 (UNISON)[1] represents a landmark constitutional decision in contemporary UK constitutional law. The case concerned the legality of the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013, which imposed mandatory fees on individuals pursuing employment claims. The Supreme Court was tasked with determining whether these fees unlawfully restricted access to justice and exceeded the authority conferred upon the Lord Chancellor by the Tribunals, Courts and Enforcement Act 2007.[2]
The Supreme Court found the Fees Order to be unlawful on the grounds that it impeded effective access to justice, which is a fundamental constitutional principle supporting the rule of law. The decision reaffirmed that statutory rights possess significance only when individuals are able to enforce them before an independent court or tribunal.
This case summary analyses the factual background, the legal issues presented to the Court, the arguments submitted by both parties, the Court’s reasoning, and the judgment rendered. It further offers a critical evaluation of the decision, with particular attention to its constitutional significance and its continuing impact on access to justice in the United Kingdom.
Facts of the Case
The Employment Tribunals and Employment Appeal Tribunal Fees Order 2013[3] brought in mandatory fees for claimants at the Employment Tribunals and the Employment Appeal Tribunal across England, Wales, and Scotland. The government introduced these fees as part of broader public sector reforms. The aim was to shift a proportion of the tribunal costs from taxpayers to users, encourage early dispute resolution, and reduce weak or speculative claims.
The Fees Order required claimants to pay an issue fee to start their case and a hearing fee before it could go ahead. Two types of claims existed: Type A claims, which covered simpler issues, including unpaid wages, attracted lower fees, whereas Type B claims, such as discrimination or unfair dismissal, attracted higher fees.
After the Fees Order was implemented on 29 July 2013, statistics showed a big decrease in claims being brought to employment tribunals, which led to concerns that prospective claimants could not enforce their employment rights due to financial constraints stemming from the high fees.
UNISON, one of the UK’s largest trade unions, challenged the legality of the Fees Order by way of judicial review. It argued that the fee regime unlawfully restricted access to justice and frustrated the enforcement of rights conferred by Parliament. Although its challenge was unsuccessful before the Divisional Court and Court of Appeal, UNISON appealed to the Supreme Court, which was required to determine whether the Fees Order was lawful.
Legal Issues
The Supreme Court was required to determine the following legal issues:
Whether the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 unlawfully restricted the constitutional right of access to justice by making it practically impossible or excessively difficult for individuals to enforce statutory employment rights.
Whether the Lord Chancellor had acted beyond the powers conferred by the Tribunals, Courts and Enforcement Act 2007 by introducing the Fees Order.
Whether the Fee Order resulted in unlawful discrimination, contrary to the Equality Act 2010, because the higher fees payable for Type B claims disproportionately disadvantaged women, who were more likely to bring discrimination and other claims falling within that category.
Arguments Presented
Appellant’s Arguments
UNISON argued that the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 was unlawful because it created financial barriers that prevented individuals from exercising statutory employment rights.[4] It noted that the significant decline in employment tribunal claims after the fee regime was introduced showed that many people were deterred from pursuing legitimate claims. UNISON maintained that rights granted by Parliament were ineffective if claimants could not realistically afford to enforce them before an independent tribunal.
UNISON also argued that the Fees Order exceeded the authority granted to the Lord Chancellor under the Tribunals, Courts and Enforcement Act 2007. It stated that Parliament did not intend for these powers to be used in a way that undermined the constitutional right of access to justice. UNISON further maintained that the higher fees for Type B claims disproportionately affected women, since discrimination and equal pay claims were more likely to fall into this category, resulting in unlawful indirect discrimination under the Equality Act 2010.
Respondent’s Arguments
The Lord Chancellor argued that the Fees Order served legitimate public policy objectives. These objectives included shifting part of the tribunal system’s cost from taxpayers to users, encouraging early dispute settlement, and discouraging weak or speculative claims.[5] The Lord Chancellor also noted that the fee regime included a remission scheme to protect individuals unable to pay the required fees.
The Lord Chancellor further argued that a reduction in tribunal claims does not necessarily mean access to justice has been unlawfully restricted. The decline could also result from successful dispute resolution through alternative means, such as early conciliation, or from deterring unmeritorious claims. Therefore, the Fees Order was presented as a lawful use of statutory powers granted by Parliament.
Court’s Reasoning and Analysis
The Supreme Court unanimously found the Fees Order unlawful due to the prevention of effective access to justice, a fundamental principle of the UK’s constitutional framework.[6] Lord Reed stressed that the rule of law requires not only legal rights but also practical and effective means to enforce them. If individuals cannot access a court or tribunal to vindicate their rights, those rights become illusory.
Both constitutional principles and empirical evidence were considered upon judgment. Statistical data showed a significant decline in employment tribunal claims after the Fees Order, especially for claims with higher fees.[7] The Court found this reduction could not be explained solely by deterring weak claims. Instead, many individuals were discouraged from pursuing genuine claims because the cost of litigation exceeded the potential value of their remedies or was otherwise unaffordable.
Lord Chancellor’s argument that the fee remission scheme adequately protected access to justice was rejected. It was found that the scheme did not help many individuals who still had to pay fees despite limited disposable income, and it did not address cases where the cost of proceedings outweighed the likely financial recovery. Therefore, the remission scheme did not remove the practical barriers created by the fee regime.[8]
The Supreme Court also held that the Lord Chancellor exceeded the statutory powers granted by the Tribunals, Courts and Enforcement Act 2007, amounting to ultra vires.[9] Parliament could not have intended these powers to be used in a way that frustrates the enforcement of statutory rights or undermines the constitutional right of access to justice.
While the Court considered the discrimination challenge under the Equality Act 2010, its main reasoning focused on the constitutional requirement that legal rights must remain practically enforceable. The judgment reaffirmed that statutory powers must always be exercised in line with fundamental constitutional principles, including the rule of law and effective access to justice.
Judgement and Ratio Decidendi
The Supreme Court unanimously allowed UNISON’s appeal and declared the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 unlawful.[10] The Court found that the Lord Chancellor exceeded the powers granted by the Tribunals, Courts and Enforcement Act 2007 by introducing a fee regime that effectively prevented access to justice. As a result, the Fees Order was immediately quashed and had no legal effect.[11] The Government was required to refund all fees paid under the unlawful scheme.[12]
The ratio decidendi is that statutory powers must not be used in ways that impede effective access to justice. The Supreme Court confirmed that access to the courts is a fundamental part of the rule of law, as legal rights are meaningful only if individuals can enforce them. Legislation that creates disproportionate financial barriers to enforcing legal rights is unlawful unless clearly authorised by Parliament and consistent with constitutional principles.
While the Court considered discrimination arguments under the Equality Act 2010, its decision was based on the constitutional principle that access to justice is essential to the legal system. The judgment set an important precedent on the limits of executive power and the protection of fundamental constitutional rights.
Critical Analysis
The Supreme Court’s decision is widely recognised as a landmark constitutional judgment, as it affirmed access to justice as a fundamental element of the rule of law. Lord Reed emphasised that rights granted by Parliament are meaningless if individuals cannot realistically enforce them before an independent court or tribunal.[13] The Court thereby reinforced both Dicey’s classical conception of the rule of law[14] and Lord Bingham’s modern view that access to justice is a fundamental requirement of the rule of law[15]; confirming that access to justice is a constitutional principle at the core of the legal system, not just a procedural issue.
The decision also clarified the constitutional limits of delegated legislative power. While Parliament authorised the Lord Chancellor to set tribunal fees, the Supreme Court held that these powers must be exercised in line with fundamental constitutional principles. In line with the principle of legality established in R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 (HL) 13,[16] the Court confirmed that fundamental rights cannot be limited by general or ambiguous statutory language. Judicial review is essential to ensure that executive power remains within Parliament’s intended limits.[17]
A key strength of the judgment is its integration of constitutional principles with empirical evidence. Instead of relying only on legal doctrine, the Court considered statistics showing a significant decline in Employment Tribunal claims after tribunal fees were introduced.[18] This allowed the Court to conclude that the Fees Order created real barriers to justice, strengthening the legitimacy of its constitutional reasoning.
However, the decision left some uncertainty, as the Court did not find tribunal fees inherently unlawful but held that the 2013 fee regime imposed disproportionate barriers to justice.[19] As a result, successive governments may introduce revised fee structures as long as they do not undermine effective access to justice. The exact constitutional threshold at which financial barriers become unlawful remains unresolved and may require further judicial clarification.
Overall, UNISON is a landmark constitutional decision that balances parliamentary sovereignty with the protection of fundamental rights. It hereby demonstrates the common law’s ability to safeguard constitutional principles whilst respecting parliamentary sovereignty. It continues to influence modern approaches to delegated legislation, judicial review, and access to justice, confirming that the rule of law requires legal rights to be practically enforceable, not just theoretical.
Conclusion
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 is widely regarded as a leading constitutional decision concerning access to justice in the United Kingdom. By declaring the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 unlawful, the Supreme Court reaffirmed that statutory rights must remain practically enforceable and that delegated powers cannot be exercised in a way that undermines the rule of law. This judgment demonstrates the constitutional function of judicial review in maintaining the boundaries of executive authority and safeguarding fundamental rights. In addition to its immediate impact on employment law, UNISON continues to shape the interpretation of delegated legislation and the protection of access to justice, reinforcing the principle that legal rights are meaningful only when effective remedies are genuinely available.
Reference(S):
Cases
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51
Legislation
Tribunals, Courts and Enforcement Act 2007
Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/1893
Books
Bingham T, The Rule of Law (Penguin Books 2011)
Craig P, Administrative Law (9th edn, Sweet & Maxwell 2021)
Dicey AV, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1959)
Elliott M and Thomas R, Public Law (4th edn, Oxford University Press 2020)
[1] R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 (UNISON).
[2] Tribunals, Courts and Enforcement Act 2007.
[3] Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893).
[4] UNISON [27]-[43].
[5] UNISON [44]-[57].
[6] UNISON [66]-[72].
[7] UNISON [81]-[94].
[8] UNISON [91]-[94].
[9] UNISON [76]-[88].
[10] UNISON [119].
[11] UNISON [119].
[12] UNISON [120].
[13] UNISON [66]-[72], [76]-[88].
[14] AV Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1959).
[15] Tom Bingham, The Rule of Law (Allen Lane 2010) ch 6.
[16] R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 (HL) 131 (Lord Hoffmann).
[17] Paul Craig, Administrative Law (9th edn, Sweet & Maxwell 2021).
[18] UNISON [87]-[94].
[19] UNISON [99]-[108].
