It’s good to see the autumn parliamentary
term kick off with the government being put on the rack about the estimated £32
million in refunds that it owes to all the individuals who were unlawfully
charged fees to pursue Employment Tribunal claims over the last four and a
quarter years.
Seven judges of the Supreme Court
delivered their unanimous judgment in UNISON
v The Lord Chancellor six weeks ago.
It left the government with no option but to concede that the fees taken
since Spring 2013 must be returned.
Since then all we have seen or
heard have been vague mutterings about working out how and when this is going
to happen. Quite right that Shadow
Justice Minister Richard Burgon should this week demand to know what’s going
on. Good on the Shadow Minister also to
invite an apology from the Minister of State for Courts and Justice.
Dominic Raab’s curious response
is:-
“We admit we got the balance wrong and took
immediate steps to address this. Of
course I am happy to say sorry to anyone who was impacted by this and that is
why we are putting in place measures to ensure people are compensated.”
He added that these plans are to
be published “shortly”.
Well, you are right – you did get the balance wrong. “Immediate
steps to address this”? That seems to
have passed me by.
What I saw was four years of many
people in this profession and industry telling your government, as they had
done before the fees were introduced, that it was unfair and would amount to a
denial of access to justice for meritorious claims.
See Fire
at will and Access denied
for example.
After the new fees began to bite
and the effects were as foretold, proving undoubtedly that the balance was
wrong, your government took no steps to address it – other than to dismiss
criticisms and fight the judicial review proceedings brought by Unison.
The Supreme Court judgment was the culmination of two applications in
the High Court followed by an unsuccessful expedition to the Court of Appeal.
The truth is that the government
has ignored and defied the entirely justifiable criticisms levelled at it
throughout a period of approximately five years including the “consultation”
(in now typical format) and taken no steps to correct its error.
Even now, this shameless
administration is stalling, maintaining its clutch on individual sums of
hundreds of pounds which represents significant amounts as far as each of the
claimants is concerned.
It’s repugnant.
The whole episode of grotesque
behaviour by our democratic government is only – and briefly so far – eclipsed
by the dazzling splendour of Lord Reed’s judgment, in particular at paragraphs
67 to 69:-
“67. It may be helpful to begin by explaining briefly the
importance of the rule of law, and the role of access to the courts in
maintaining the rule of law. It may also be helpful to explain why the idea
that bringing a claim before a court or a tribunal is a purely private
activity, and the related idea that such claims provide no broader social
benefit, are demonstrably untenable.
68. 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.
69.
Access to the courts is not, therefore, of value only to the particular
individuals involved. That is most obviously true of cases which establish
principles of general importance. When, for example, Mrs Donoghue won her
appeal to the House of Lords (Donoghue
v Stevenson [1932] AC 562), the decision established that producers of
consumer goods are under a duty to take care for the health and safety of the
consumers of those goods: one of the most important developments in the law of
this country in the 20th century. To say that it was of no value to anyone
other than Mrs Donoghue and the lawyers and judges involved in the case would
be absurd”.
We have reached a worrying
position where the executive needs to be reminded of the purpose of a democracy
and then reminded of its duty to comply with the findings of the senior
judiciary.
Of course, many are saying
– with some force – that there is more to come.
Lord Reed also said, with
the approval of all his colleagues, that:-
“People and businesses need to know, on the
one hand, that they will be able to enforce their rights if they have to do so,
and, on the other hand, that if they fail to meet their obligations, there is
likely to be a remedy against them. It
is that knowledge which underpins everyday economic and social relations”. [My emphasis].
This observation, and the general
tenor of the judgment, exposes again the complete absurdity of the suggestion
from Lord Faulks, two and a half years ago, that litigation is an Optional activity.
This was his Lordship’s
justification for the hurried introduction of the huge increase in civil court
fees (county and high courts) which saw the price of bringing a claim at some
levels rise to 760% of
what it was.
There’s no doubt that these fees
represent a denial of access to justice.
Nobody can say that the levels were so wrong beforehand. It’s all part of the government’s policy of turning
courts into profit centres – if it possibly can.
QED, yet again, the ill-fated
attempt by the former Lord Chancellor (sic) to hike probate court fees by, at
the top end of the scale, a factor of 129!
The parliamentary commission that
laid the stinger in the tracks of that juggernaut observed that Miss Trust’s
planned changes “Seemed to have the hallmarks of taxes rather than fees”.
That’s exactly what it is – all
of it.
That particular robbery was thwarted
in its planning stages. Thanks to the
heroic efforts of Unison, the ET heist has been stopped and – hopefully – the
ill-gotten gains will be returned to the victims.
It’s now high time justice was
done in relation to the rest of the court fee system. Time to get the balance
right.
