Friday, 8 September 2017

Balancing act

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.

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