Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘constitutional principle

A big day in the Supreme Court

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Major cases raising fundamental constitutional issues are rare, which is why 24 Sept 2019 is a significant day. The supreme court ruled that the Prime Minister’s decision to prorogue Parliament for 5 weeks was unlawful.

For the Prime Minister, it was argued, in essence, that the prorogation of Parliament is an act which falls within the scope of the Prerogative (acts formerly taken by the monarch in person, now taken by Ministers). As an essentially political decision, it should not be capable of review by a court – in the technical language it was not ‘justiciable’.

The Supreme Court – sitting with 11 justices – ruled unanimously that it was possible for the courts to judicially review the exercise of prerogative power – to determine whether such exercise fell within the accepted boundaries for the use of such powers. In short, the review of the power to prorogue was a justiciable matter.

That alone did not mean that the Government had acted unlawfully. Prorogation is an important part of the Parliamentary calendar.  It brings one Parliamentary session to a close. Ministers then prepare a Queen’s Speech which sets out the Government’s legislative priorities for the coming 12 months. Members of the Supreme Court accepted that a prorogation for a short period was necessary, even though Parliament could not function during that period.

However, the justices accepted evidence (including evidence from the former Prime Minister Sir John Major) that in recent years prorogations tended to be for between 4 and 6 days.  That was the average amount of time needed to sort out the Queen’s Speech.

The key point about a prorogation is that it brings all the work that can be carried on in Parliament to a complete standstill. No Committees can work, no Parliamentary Questions can be answered. Prorogation is distinct from recess when Parliament does not sit (e.g. in holiday periods|) but other Parliamentary business does continue.

Thus the issue in the present case was whether a 5-week prorogation was appropriate.
On this the justices were unanimous. They held unequivocally that such a long prorogation prevented Parliament from exercising its constitutional function of holding the Government to account.
The fallout from this decision is far from clear.
The Speaker of the House of Commons has announced that Parliamentary business will resume on Wednesday 25 September 2019. Will the Government take any steps to counter this decision?
One effect of prorogation is that Bills going through Parliament at the time of prorogation fall, and have to be reintroduced or carried over into the following session. (Where there is a general election, ‘carry-over’ is not possible.) What will happen in this instance?
Looking to the longer term, was one of the problems here that we do not have a written constitution in the United Kingdom that might have clarified in a basic law the process for prorogation? There are certainly some influential voices being heard that the time is approaching when we should adopt a written constitution.
All the written submissions made to the Supreme Court have been published on-line – as have all the hearings in the Court. This case will be studied by lawyers and politicians for years to come, and will divide opinion.
You can find all the material relating to the case at
https://www.supremecourt.uk/watch/prorogation/judgment.html,
https://www.supremecourt.uk/cases/uksc-2019-0192.html
https://www.supremecourt.uk/brexit/written-case-submissions.html
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Employment Tribunal fees: back to the drawing board

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Until the coming into force of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013,  a claimant could bring and pursue proceedings in an Employment Tribunal (ET) and appeal to the Employment Appeal Tribunal (EAT) without paying any fee.
The Order created a somewhat complex fee tariff in which different fees were paid, depending on the type of action being brought before the tribunal. In addition, a fee had to be paid at the start of proceedings, another when the case went to a hearing. Poor claimants who fell below defined income and capital limits could get their fees remitted.
The Government’s objective in imposing the fees were said to be
(i) Financial: to transfer a proportion of the costs of the ETs to users (where they
can afford to pay);
(ii) Behavioural: to encourage people to use alternative services to help resolve
their disputes; and
(iii) Justice: to protect access to justice.getting a better balance between what the taxpayer funds and what the litigant funds.

An official review of the impact of the fee changes, published in January 2017 concluded that, broadly, these objectives had been achieved. (See this blog, February 2017)

The Supreme Court has, however, come to a quite different conclusion. In R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51, the Court concluded unanimously that the Fees Order was ultra vires (that is to say that the Lord Chancellor did not have the power to make the order) and so quashed it.

There are at least three reasons why the judgements in this case are particularly interesting.

First, in most cases where the validity of a Statutory Instrument is challenged in the courts, the argument turns on fairly precise questions of statutory interpretation – were the rule-making powers in an Act of Parliament sufficient to give the relevant Minister the power to make the order being challenged?

In this case a much broader, constitutional approach was adopted. The essence of the argument was that the impact of the Order was so dramatic (the numbers of cases coming to both the ET and the EAT had fallen dramatically since the introduction of the fees) that they had the effect of denying potential claimants access to justice.Lord Reed, in the principal judgement, refers back to a number of historic legal texts, including Magna Carta, to conclude that it is a constitutional principle recognised in common law, that people should have access to justice.

Second, the judgement relies heavily on a number of empirical studies to show that the effect of impact of the fees rules was quite disproportionate. Using hypothetical examples, the Justices conclude that ordinary people on average earnings would have to forgo weeks if not months of expenditure on anything other than the most basic necessities to save the money needed to pay the relevant fees. The Court decided that the fees thus imposed a quite disproportionate burden on those who might have an arguable case to take to the ET or EAT. Certainly the cosy conclusions of the impact review, mentioned at the start of this note, were totally rejected by the Supreme Court

Finally, Lord Reed makes a number of  interesting and important observations about the rule of law and the functions of courts and tribunals in supporting the rule of law. (See in particular paras 66-85 of the judgement). Here I set out brief extracts from the judgement:

The importance of the rule of law is not always understood. Indications of a lack
of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to
the “users” who appear before them, and that the provision of those services is of
value only to the users themselves and to those who are remunerated for their
participation in the proceedings. [There is an] assumption that the consumption of ET and EAT services without full cost recovery results in a loss to society, since “ET and EAT use does not lead to gains to society that exceed the sum of the gains to
consumers and producers of these services”.
[However] …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….
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.
Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established. Their cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless. The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people….
But the value to society of the right of access to the courts is not confined to cases in which the courts decide questions of general importance. 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….
When Parliament passes laws creating employment rights, for example, it does so not merely in order to confer benefits on individual employees, but because it has decided that it is in the public interest that those rights should be given effect. It does not envisage that every case of a breach of those rights will result in a claim before an ET. But the possibility of claims being brought by employees whose rights are infringed must exist, if employment relationships are to be based on respect for those rights. Equally, although it is often desirable that claims arising out of alleged
breaches of employment rights should be resolved by negotiation or mediation,
those procedures can only work fairly and properly if they are backed up by the
knowledge on both sides that a fair and just system of adjudication will be available
if they fail. Otherwise, the party in the stronger bargaining position will always prevail….
The Justices accepted that a system of fees that had the objectives set out above – of reducing the cost to the tax payer, encouraging settlement and deterring weak cases – were quite lawful. But they concluded that in this case the fees structure had gone too far. In addition they noted that the practical outcome of the fees imposed by the order was to result in a significant reduction in the money being paid into the system by parties to proceedings. In short, the price for access being charged was too high for the Government to be able to achieve its principal objective of increasing revenue into the court/tribunal system.
It seems clear to me that the Government will not abandon its fees policy – either in relation to ETs and EATs, or indeed to other parts of the courts and tribunals system where fees are imposed. But those devising future schemes will have to take into account considerations that go well beyond those that were initially taken into accounts by Ministers and their civil servant advisers.
The full text of the judgement is at https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf
The press summary is at https://www.supremecourt.uk/cases/docs/uksc-2015-0233-press-summary.pdf